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UK Covid 19: Government announces delay to final step on roadmap, emphasising the need for employers to be ready for change

The government has announced that stage 4 of the lockdown roadmap will be delayed. This article looks at how employers need to be able to anticipate future change in their return to work policies.

On Monday 14 June 2021, the government announced that stage 4 of the lockdown roadmap will be delayed for a period of up to 4 weeks. As part of this, the government guidance that workers should work from home if possible will continue beyond 21 June.

This comes at a time when employers, particularly those with an office-based workforce, have been considering the approach they will take in return to work policies. That will continue, but with the inevitable pushing back of implementation. Employers, quite understandably, want to be ready for an influx of people coming back to the office and, more often than not, have been steering towards a policy that allows the workforce to continue working from home to some degree.

Since the outbreak of the pandemic in the UK in March 2020, one thing we have known for certain is unpredictability. It was only in September last year that the government launched a short-lived advertising campaign to encourage workers to return to their

Returning to the office: Key questions and answers for UK employers

As 21 June 2021 gets nearer, how are you going to manage the return to the office? Adam Lambert, Mark Kaye and Lydia Moore answer the key questions being asked by office-based businesses in the first in a series of regular updates on the topic.

  1. Can an employer force its employees to return to the office? Despite the easing of the lockdown in the UK, the government guidance is to still work from home where possible. However, the potential further easing of restrictions on 21 June 2021 will mean that employers will have the option to consider whether it may be appropriate to ask their employees to come back to the office. Employers will need to act with caution and treat each employee on a case-by-case basis. Although the contract of employment will almost certainly require the employee to work at the company’s offices, the impact of COVID-19 should not be disregarded. If an employee is reluctant to return to the office, they should be consulted first so that steps can be taken to allay their fears and other options can be explored. If an employee has a disability, there will be an additional requirement for the employer to

Illinois Tightens Restrictions on Use Of Criminal Conviction Information

Restrictions on inquiring into, or using, criminal history information are not new to Illinois employers.  For years, Illinois employers been precluded from using an applicant’s arrest history when making hiring or other employment decisions.  And, in 2015, Illinois joined the list of “ban the box” states by precluding employers with 15+ employees from inquiring into or considering the criminal record or criminal history of an applicant until after the applicant was selected for an interview or had received a conditional offer of employment.

Effective March 23, 2021, the restrictions have tightened again, through amendments to the Illinois Human Rights Act (“IHRA”), which borrow concepts from the Equal Employment Opportunity Commission (“EEOC”) and the Fair Credit Reporting Act (“FCRA”).

Restricted Use of Conviction Records

The new IHRA provisions make it a civil rights violation for an employer to use a “conviction record” as the basis for any employment decision, including hiring, promotion, discipline and discharge, unless:

  1. There is a “substantial relationship” between one or more of the previous criminal offenses and the employment sought or held; OR
  2. The granting or continuation of employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals

Back to Life: Issues for UK employers as employees return to the workplace

At the time of writing, the Government has published its provisional roadmap out of lockdown and employers are beginning to consider when and how employees may return to the workplace. This article considers some potential options and possible risks relating to a return to work.

Can employers force employees to return to work after lockdown?

It is a general principle of English employment law that employees must comply with reasonable management instructions from their employer. This would include an instruction to attend work.

Whilst health and safety considerations have obviously called this into question during the pandemic, a requirement to return to work may still amount to a reasonable management instruction, depending on the type of workplace, the employee concerned and how easily the employee’s work can be carried out from home. To avoid potential disputes it would be sensible for employers to consult with staff as early as possible to discuss matters and try to seek agreement. This is particularly important if a return to work requires a change to any terms and conditions of employment, as that will require consultation. Employers should take care to consider each individual circumstance on its own merits and be as flexible as

Coronavirus (UK): Managing the rise of DSARs and redundancies during the Coronavirus pandemic

Introduction

During the Coronavirus pandemic, there has been a rise in the number of both redundancies and data subject access requests (“DSARs”). This rise has placed increased pressure on HR teams and Data Protection Officers (“DPOs’”), who are having to grapple with this burden alongside the other day to day challenges posed by the pandemic. This article provides a snapshot of the recent trends and some practical tips from our employment team for dealing with them effectively and/or minimising legal risk.

Redundancies

The Office for National Statistics (“ONS”) recently reported that there were 726,000 fewer people in payrolled employment in January 2021 compared to February 2020. More broadly, it has noted that the UK unemployment rate in the last quarter of 2020 was 1.3% higher than in the same period of 2019. In light of such figures, the ONS has commented that “the increase in UK redundancy rates during the Coronavirus pandemic is faster than during the 2008-2009 economic downturn”.

The Chancellor Rishi Sunak stated in his March 2021 Budget that, whilst Government interventions to support jobs have worked, and the Office for Budget Responsibility’s expected peak unemployment rate has lowered from 11.9% to 6.5%, job loss is very much

UK HR Two Minute Monthly: employment status, harassment and reasonable steps, workplace surveillance and unfair dismissal

The Supreme Court Delivers Verdict in Landmark Uber case

As we reported in our dedicated update, the Supreme Court gave judgment in the final appeal in relation to the Uber litigation at the end of February, unanimously concluding that the Uber drivers who brought claims against Uber in 2015 were workers within employment legislation.

Why this matters?

The outcome of this case has been long awaited given its importance to gig economy businesses. The Supreme Court found that the rights asserted by the drivers were not contractual rights but rather rights granted under statute. As such, while the contract between the parties is something that the courts can consider, the correct approach is to consider all the relevant circumstances, which will also include the relationship between the parties in practice and the general purpose of the legislation in question.

It is worth noting that this assessment must be carried out on a case-by-case basis and, as such, this decision does not determine the status of all gig employee workers. The issue of employment status therefore remains an area of debate.

Uber BV and others v Aslam and others

Employer unable to rely on “reasonable steps” defence in respect

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

Coronavirus (UK): 10 key vaccination issues for employers

1. Can an employer require an employee to be vaccinated?

No.  The Public Health (Control of Disease) Act 1984 provides that individuals must not be compelled to undergo any mandatory medical treatment or vaccination.  In addition, employees may have the protection of Article 8 of the European Convention on Human Rights which provides that individuals have the right to not be physically or psychologically interfered with.  Furthermore, any forced vaccination is likely to amount to a criminal offence.

ACAS guidance advises that employers should support staff in getting the vaccine, but cannot force them to be vaccinated.

2. What are the discrimination risks associated with vaccination?

Discrimination issues may arise either as a result of compelling employees to take the vaccine or putting in place measures which are detrimental to those employees who have not taken the vaccine.

The two key risks are likely to be disability discrimination (where an employee is unable to get the vaccine because of a health condition) and religious or philosophical belief discrimination (where, for example, there may be concerns for vegan employees due to animal testing on the vaccines).

3. What impact will vaccination have on the COVID-secure workplace?

As well as the fact

Coronavirus (UK): detailed guidance published on the extended furlough scheme – key points for employers

In our blog on 5 November 2020, we flagged that further government guidance on the extended Coronavirus Job Retention Scheme (“CJRS”) would be provided on 10 November 2020. HMRC has now published that guidance.

Key details of the government guidance

The updated guidance includes the following key details:

  • During the period 1 November 2020 to 31 January 2021, the government furlough grant will pay 80% of wages for hours not worked up, capped at £2,500 per month. Employers will be liable for employer National Insurance contributions and employer pension contributions only. The government will review the terms of the scheme in January 2021 and may then require that employers make a contributions towards wages (as it did under the original scheme).  This is likely to be dependent on the state of the economy and the general prevalence of the virus.
  • The extended CJRS applies to employees who were employed as at 30 October 2020, as well as employees who were made redundant or stopped working on or after 23 September 2020, if they are then re-employed by their employer.
  • Employers can make a claim under the extended furlough scheme in relation to employees who have not previously

Coronavirus (UK): further extension of the furlough scheme – key details for employers

The UK Chancellor of the Exchequer has, today, announced in Parliament, the extension of the Coronavirus Job Retention Scheme (“CJRS”) until the end of March 2021.

The scheme will continue to be on the terms as outlined in our previous blog on Monday until at least 31 January 2021, with the government grant at 80% of salary, capped at £2,500 per month. However, there will be a government review in January 2021 and it is possible that the government grant will, again, be reduced.

Full guidance on the CJRS extension will be published on 10 November 2020. The guidance on claims from February 2021 onwards will be published following the government’s review.

 

BCLP has assembled a COVID-19 Employment & Labor taskforce to assist clients with employment law issues across various jurisdictions. You can contact the taskforce at: COVID-19HRLabour&EmploymentIssues@bclplaw.com.

You can view other thought leadership, guidance, and helpful information on our dedicated COVID-19 / Coronavirus resources page

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