Employment Law Review – April 2021
Welcome to our April Employment Law update.
As many businesses opened their doors for the first time in over 12 weeks, a new Treasury Direction has been published covering the extension of the Coronavirus Job Retention Scheme (Furlough Scheme) until 30 September 2021. We highlight the key changes of which you need to be aware, set out some important dates as the Furlough Scheme draws to a close later in the year and also bring you up to speed with the latest on mandatory COVID-19 vaccines.
We discuss a recent case on Shared Parental Leave and sex discrimination and set out an overview of the Employment Tribunal roadmap for the next financial year, together with our top tips for virtual hearings. Lastly, the Supreme Court recently handed down its decision in the long-running Asda dispute on appropriate comparators for equal pay purposes. The decision carries huge ramifications for the retail sector, who may face backdated equal pay claims from employees using cross establishment comparators. See our practical steps to managing risk in light of this decision here.
- Coronavirus developments
- Virtual hearings are here to stay
- Preparing for and managing virtual hearings: top tips
- Discrimination: Shared Parental Leave and Adoption Leave are materially different
- On demand videos
This month’s key developments are below:
- Furlough Scheme is open to new joiners – From 1 May 2021 employers can furlough employees who started between 31 October 2020 and 2 March 2021. To be eligible, the employer must have a registered a PAYE scheme and have made an RTI submission to HMRC in respect of the employee between 20 March 2020 and 2 March 2021. The employer need not have previously claimed under the Furlough Scheme, or have submitted a claim in respect of the employee.
- Reference date for employees on variable pay – The Furlough Scheme guidance has been updated to clarify whether a variable pay employee’s relevant reference date is 19 March 2020, 30 October 2020 or 2 March 2021. For claim periods on or after 1 May 2021 when calculating average wages for variable pay employees, days spent on family-related statutory leave, statutory sick pay leave, or reduced rate paid leave following those periods of leave, should not be taken into account (unless the employee was on one of these types of leave throughout the entire calculation period).
- COVID-19 vaccines – Given the low uptake of vaccines among care sector staff, the Government has issued a consultation proposing changes to legislation which would require adult care providers to only deploy workers vaccinated against Covid-19. This is a sweeping change from the current public health policy. See our full update here. It is really important that care providers follow any developments closely and obtain up to date legal advice before implementing any policy change, mandatory or otherwise.
- Temporary adjustments to Right to Work checks will cease – The Home Office has updated its guidance confirming that the temporary adjustments made on 30 March 2020, catering for Covid-19 distance working arrangements, will end on 16 May 2021. From 17 May 2021, employers must either check their prospective employees’ original documents or check the prospective employees’ right to work status online. In a change from the Home Office’s original proposal, employers will not be required to carry out a follow up/repeat check where a right to work check was carried out between 30 March 2020 and 16 May 2021 (inclusive), in the prescribed manner under the concession. For more information on how these upcoming changes will impact your business, please contact our Business Immigration team.
- Wind down of the Furlough Scheme – There is no indication that the Furlough Scheme will extend beyond 30 September 2021. Organisations should therefore plan ahead for the tapering of the Government contributions and the closure of the Furlough Scheme. Although the Furlough Scheme has been a lifeline to many businesses, there are some who will need to consider restructuring or rationalisation as the Government’s financial support draws to a close. See key dates including the relevant consultation periods here.
After a year of lockdown the Employment Tribunals of England and Wales and Scotland have issued a Roadmap for the 2021/22 financial year. The Roadmap is clear that, although justice is best experienced in a face to face environment, the future will involve more use of technology; video hearings will be with us more permanently and are essential for at least the next two years. Most preliminary hearings will now default to video. Judicial mediations and interim relief applications (which are on the rise) will also default to video. A ‘virtual region’ was also launched this month which will operate alongside the ten existing regions in England and Wales. It will take advantage of the flexibility offered by video hearings to enable judges, members and staff who are geographically dispersed to come together on the Cloud Video Platform (“CVP”) to hear cases generated by any region.
It is clear from the Roadmap that there will continue to be a heavy reliance on virtual hearings. As a national team we have considerable experience of virtual hearings and judicial mediations via the CVP. The good news is that remote hearings are working well. All participants are generally familiar with virtual meetings. Witnesses in some circumstances feel more comfortable, being in their own environment and perhaps not being confronted by the person they’ve dismissed. There is also the obvious convenience for parties of not having to travel to a Tribunal venue, saving time and cost. However, there are downsides. The unavoidable technology challenges; not all servers are compatible with the CVP software. In addition, varying broadband speeds and connections can make the hearing disjointed and less effective. This together with the absence of visual cues can make it difficult to have more natural conversations. This may be daunting and unsettling for witnesses who are unfamiliar with the process. Where at least one party is represented, all the documents are expected to be bookmarked, distributed electronically and viewed electronically throughout the hearing. This can cause problems for those who are limited by technology or unfamiliar with navigating soft copy documents effectively. Lastly, to ensure open justice during virtual hearings, some witnesses maybe required to read their witness statements aloud. This is a departure from existing practice in England and Wales where witness statements have often been taken as read.
It’s important that organisations plan ahead for virtual hearings. Here are our top tips:
- HR Process – Conduct disciplinary and grievance hearings with a virtual hearing in mind. Ensure handwritten notes are legible so they can easily be scanned into an electronic bundle if needed. If notes are difficult to read consider typing them up.
- Prepare your case early – It could be quite some time before a claim reaches a final hearing so consider securing witness evidence early.
- Electronic Bundles – Tribunal bundles and exchanged witness statements are now required to be with the Tribunal office at least 7 days before the scheduled hearing date, in both printed and PDF formats that adhere to certain presentation rules.
- Prepare your witnesses to deal with giving evidence remotely – Ensure witnesses are familiar with the technology and feel comfortable using it. For some witnesses, recounting particularly disturbing or difficult events while giving evidence in their own home can be tough so ensure appropriate support is offered.
- Prepare for the hearing – Each participant should check, in advance, that they can access the CVP and can open and read the relevant documents, as well as knowing how to quickly navigate to a certain point in the documents if directed by a Judge.
- Consider settlement or judicial mediation at an early stage – This would avoid the tribunal system altogether. These can often be arranged much sooner than a final hearing and judicial mediations taking place via CVP have, in our experience, been as effective at resolving disputes as in-person mediations.
The Employment Appeal Tribunal (EAT) has confirmed that Shared Parental Leave (SPL) cannot be compared with Adoption Leave (AL) for the purposes of a discrimination claim, as there is a material difference between the two. This is a welcome decision for employers that offer different rates of pay for those on SPL and those taking AL.
SPL gives parents a more flexible way to take leave in the first year after the birth or placement of a child. SPL requires one partner bring their maternity leave or AL to an end, following which both partners will be using SPL. Organisations often pay SPL at the statutory rate but offer enhanced maternity or adoption pay.
When Mr Price and his wife were expecting their first child, they decided that Mr Price would stay at home to look after the baby, while his wife returned to work. Mr Price enquired about his entitlements under Powys County Council’s SPL Policy and was told that he would receive the statutory rate for any period of SPL. As a result, Mr Price did not proceed with his application for SPL. He bought a direct sex discrimination claim arguing that female employees on AL were entitled to a higher rate of pay during their leave periods than men on SPL.
To bring a direct sex discrimination complaint, an appropriate comparator needs to be identified. Both the Employment Tribunal and the EAT agreed that SPL could not be compared with AL; the purpose of AL goes beyond providing childcare. The EAT identified four key differences between SPL and AL:
- AL can commence before a child’s placement, whereas SPL could not.
- AL is an immediate entitlement upon placement. SPL can commence at any time during the first year following a child’s placement.
- SPL can only be taken once the partner agrees to end their AL.
- AL must be taken in one block of continuous leave, whereas SPL can either be taken in one block or at different times during the first year following a child’s placement.
Although this is a helpful decision for employers offering different SPL and AL pay rates, it does highlight one of the key reasons why SPL take-up has been so poor since its inception in 2014. Last week, campaigners called for the existing SPL provisions to be scrapped and replaced with a more balanced approach for both mother and fathers.
Diversity & Inclusion – Last week, our employment specialists were joined by Inclusive Employers to discuss why Diversity and Inclusion (D&I) are so important in an agile working world and the practical steps that organisations can take to demonstrate an understanding of online harassment. To support clients in this area we have developed a D&I checklist for training and policies. In case you missed it and would like to watch it back in your own time, please contact us for a copy of the recording and our D&I checklist.
Releasing lockdown – As we support our clients with the easing out of lockdown, we’ve put together a series of bite-size videos setting out our top tips on some of the most common queries that we are advising on. You can access them by clicking the links below.
The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
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