Covid-19 Impact on Employment Law

With the furlough scheme apparently on the wind down there have been fewer employment law developments of late. The Government has been concentrating upon Covid-19 and more recently Brexit has come onto the agenda. Courts and Tribunals have been hearing many fewer cases and therefore not making much new law.

Covid-19 has further impacted upon delays in the Employment Tribunal service. Pre-lockdown there was a backlog of single cases of 30,687. By the end of June, it had increased to 36,616. No doubt it is higher than this now. Tribunals stopped hearing cases altogether for a period and have more recently been undertaking hearings using video facilities. To compound this, the increase in redundancy dismissals which has already occurred, and which will no doubt accelerate during the Autumn, is predicted to lead to a further rise in cases, especially as many employees will fail to obtain alternative work quickly. The wait for a final hearing is getting longer and longer. The worst region appears to be the South East. At present cases of 2 or more days duration are being listed for well into 2022!

Isaac Qualifies as Solicitor and joins the Construction Department after training at Davies and Partners

Davies and Partners is delighted to announce that Isaac Cole has qualified as a Solicitor following the completion of his training contract with the firm.

Isaac started work at Davies and Partners as a secretary whilst he studied for his Legal Practice Course (LPC) four years ago. Isaac began his training contract in 2018. As a trainee, Isaac had placements in the Firm’s Bristol Office in the Medical Negligence Department and then in the Construction Department before he moved to the Firm’s London, Office.

Having successfully completed his two years of training and qualified, Isaac has now been offered a position as Solicitor in the Construction Department where he will deal with contentious construction and general litigation matters.

Commenting on his new role Isaac said, “The process to qualify as a solicitor is acknowledged as being extensive and testing and I can certainly vouch for this. I am extremely proud and excited to have now qualified and to begin my career as a Solicitor. Davies and Partners has accommodated and supported me throughout the years of my training and I am now looking forward to a long and prosperous career with the Firm.”

Commenting Legal Director Suzanne Williams, who heads up the Firm’s Bristol Medical Negligence team where Isaac began his training, said, “Qualifying as a Solicitor is a long and at times difficult journey. It is very competitive and there are many stages that have to be completed. Isaac has worked extremely hard and we would all like to congratulate him on reaching this final goal and to wish him all the very best in his future career.”

Legal Director Tracy Edwards, Achieves Reaccreditation onto Prestigious Law Society Clinical Negligence Panel

Davies and Partners Solicitor’s Legal Director Tracy Edwards is celebrating receiving reaccreditation onto the prestigious Law Society’s Clinical Negligence Panel for the fourth time.

Tracy, who heads up the medical negligence and personal injury teams in the firm’s Birmingham office, has a wealth of experience, representing people who have suffered in complex catastrophic medical negligence and personal injury claims.

She represents clients throughout the UK and on a wide range of claims involving many types of negligence such as birth injury, brain injury, cerebral palsy, spinal injury as well as cancer and other areas of medical negligence.

Gloucester Virtual 10k raises £10k

The original historic Gloucester 10k was due to be run for the 8th time this year. It was conceived 8 years ago after a disastrous commercial Gloucester 10k and an immediate campaign along the lines of “Surely we can organise a 10k in our City”. The idea was to have an attractive race showcasing Gloucester, getting the community involved in organising the race, enjoying the race and with all proceeds going back to the community. Over the previous 7 years with massive assistance from the Gloucester community the race has been able to pour back all of the proceeds, amounting to over £50,000 into the Gloucestershire community.

Race Director, Nigel Tillott said “This year we held on as long as possible, but by mid-May we had to make a call. Had we held on any longer major spending commitments would have been made. Gloucester Quays Rotary has been one of the major organisers of the event from Day 1 and didn’t want to let it go. It had already been agreed that Sue Ryder Leckhampton Court Hospice would be a major beneficiary of the run and initial planning had started in coordination with the Charity. So, the Gloucester Virtual 10k was launched with Sue Ryder Leckhampton Court Hospice being the beneficiary with only 1 month to the race. We had no idea how successful it would be but thought that Sue Ryder Leckhampton Court Hospice alongside many other charities really needed the funds as most of its fundraising sources had dried up with Covid-19. Therefore, we thought that even if we raised a little money it would be very helpful.

Zoom presentation to Employees Reviews half-year results and the effects of Covid-19 lockdown

Davies and Partners’ Chief Executive Ewan Lockhart addressed over 100 of the firm’s employees via a Zoom presentation this week, to highlight the Firm’s half year results, including the 4 months during the Coronavirus lockdown.
During the informative 45-minute presentation, Ewan explained how the measures taken by the Firm during the last few years had proved extremely beneficial. This included converting from a traditional unlimited liability Partnership to a Limited Company in 2017. This process may have gone unnoticed by many but has proved significant in light of the Coronavirus pandemic.

In addition, at the start of 2019, Davies and Partners had taken the decision to move the business to a more Paper-lite working environment. The investment in new digital systems has proved highly beneficial, as within days of the Government’s announcement of Lockdown in March, the majority of the Firm’s staff were able to work efficiently, effectively and professionally out of the office and were able to maintain a seamless, high level of service for clients.

No-fault divorce 

On 17 June 2020, the Bill changing the law to allow couples to obtain a no-fault divorce was finally approved by the House of Commons. Subject to any amendments by the upper House and consideration being given to how it will be implemented, it is expected that it will become law in autumn 2021.

The existing law requires couples to allege “grounds” of adultery or unreasonable behaviour unless they are prepared to wait for at least two years. The need to prove grounds does not help in keeping matters on an amicable basis, particularly when there are children involved and the couple needs to have an ongoing relationship as parents.

Employment Law Update - Covid-19 - Furlough Leave – another layer of complexity thrown in

The Government has now issued further guidance on how furlough leave will work from 1st July when it is possible to furlough an employee on a part-time basis. By now you will be aware that the changes are hardly likely to be straightforward.

Broadly, if an employee hasn’t been furloughed by now (10th June was the deadline for first furloughing) a business will not be able to furlough them at any future point.

There is an exception for those returning from various forms of family friendly leave – maternity, adoption, shared parental, paternity or parental bereavement. This is provided that it started before 10th June and finished after this date and the individuals are on the business’ PAYE payroll on 19th March.

From 1st July the total number of employees on furlough leave cannot exceed the maximum on furlough leave at the business during any previous claim period (although returners from family friendly leave can be added to this number).

Gloucester 10k Goes Virtual

The highly successful Gloucester 10K run, which was scheduled to take place this summer has like many events, had to be cancelled due to the Coronavirus crisis. But runners need not despair, as the organisers who include a team from Davies and Partners Solicitors working alongside Gloucester Quays Rotary, are determined that the spirit and fundraising benefits of the race will continue via a Virtual 10K event, to take place over the weekend of 4-5 of July.

The Gloucester Virtual 10K will be open and accessible to athletes and amateur runners alike who can enter for £10 as individuals of within corporate teams of four or more. All proceeds will go to Sue Ryder Leckhampton Court Hospice, which would have benefited from the actual race this year. The Hospice provides fantastic support across the county, but like many charities, the Hospice has been very severely hit by the current crisis, not least due to the lack of fundraising events on which it relies.

The Virtual 10K offers runners complete flexibility, as entrants can tackle the 10K in one run or in shorter bite size segments, running whenever and wherever they want, throughout the weekend.

One of the key features of the race in previous years has been the corporate entries, which Davies and Partners has been delighted to support. There is no cost supplement for corporate entries in the virtual race. The minimum number of runners is four per team at a cost of £10 per person with an optional medal.

Employment Law Update - Covid-19 - Furlough Leave – the beginning of the wind-down

On Friday Rishi Sunak announced the progressive wind-down of the furlough scheme. Whilst more detail is awaited particularly around the mechanics of mixing part-time working and furlough leave, there is now a fairly clear timetable against which businesses can start to plan their strategy: -

10th June – This is the last day upon which an employer can furlough an employee for the first time. As before, the minimum period of furlough leave is 3 weeks.

30th June – The furlough scheme is not available for any employees not previously furloughed. It will be noted that the closure date is effectively 10th June. However, it would appear that if an employee has been previously furloughed but doesn’t happen to be furloughed in June, that employee could be furloughed subsequently. However, in line with the policy to get people back to work, employers will not be able to claim in any month for more employees furloughed than have been furloughed in previous months.

1 July – For the first time it will be possible for employees to be partly furloughed and to work part-time hours. It would appear that employers will be able to choose the hours to suit, the employee will be paid in full by the employers for those hours and the employer will be responsible for tax and National Insurance contributions on those payments. The employee will need to specifically agree to the new arrangements and subject to that the furlough scheme and Government payments will still apply to those hours when the employee would normally be working but is on furlough leave.

New protection for office-based staff:

Like every other profession, construction is calibrating to the new normal. For the latest on new normal in the office, please have a look at:
https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19/offices-and-contact-centres

The construction team will continue to work from home, with admin functions performed by a support team based in the office. We worked at home a lot before the pandemic, so it is pretty much business as usual.

Continued support for construction clients

We continue to support our construction clients, assessing risk on existing and prospective projects in the light of the pandemic.

Health risk is, of course, a top concern and we are pleased to see at https://www.gov.uk/government/news/further-expansion-of-access-to-coronavirus-testing-helps-protect-the-most-vulnerable that: “construction workers to emergency plumbers, research scientists to those in manufacturing - can now be tested”.  “All they need to do is go on the internet and apply for a test.”

Employment Law Update - Covid-19 - Furlough Leave – are we there yet?

The HMRC portal for claiming Furlough Leave payments is up and running. HMRC says it is confident that the system has capacity to deal with all claims and that it will make payments within 6 days of application. The proof will be in the pudding.

In advance of opening the portal the Government issued a flurry of further information in the latter part of last week, a fair amount of it on Friday afternoon. Clarification has been added, but there remain gaps and inconsistencies.

The full amount of information is now vast, but I thought it may be helpful to highlight a few points:-

Length of the scheme – It has now been extended to 30th June and could be extended further. It is thought that this change was undertaken now because some larger employers contemplating mass redundancies once the scheme ends would by law have had to start mass consultation by the middle of April. That wouldn’t have been great for morale at this very uncertain time and particularly so when businesses have no inkling of the ‘exit’ strategy and therefore cannot plan effectively.

The extent of the agreement between employer and employee – In the middle of last week the Treasury issued a Direction to HMRC setting out how it is required to operate the Furlough scheme. The document isn’t the easiest to understand, but said that in order to make a claim in relation to an employee there had to be a written agreement between the employer and employee, which could be in electronic form and in relation to which the employee specifically agreed to cease all work in relation to their employment. Prior to that point it had been understood that obtaining written consent from employees wasn’t essential. The various editions of the Guidance issued to employers, and we are now on our fifth version, have said different things. Subsequent to the Direction, Friday afternoon’s Guidance says that the agreement between employer and employee needs to be consistent with employment law and specifically envisages that this doesn’t necessarily mean that a written response is required from the employee. Good practice must be for employers to seek confirmation of agreement in writing, but if this is not possible it would seem that all is not lost.

Covid-19 Updated SOP

It has been a busy short week, with a focus on Covid-19, of course. Since our news post last week an updated SOP has been issued which may be accessed at:
https://www.constructionleadershipcouncil.co.uk/news/site-operating-procedures-version-3-published/

Employment Law Update - Covid-19 - Furlough Leave – latest tweaks!

The expectation is that employers will be able to start making claims in relation to employees on furlough leave from next week. In the meantime, further information has been issued upon the working of the scheme. Whether this will be the last we shall have to wait and see.

The Treasury has issued a Direction to HMRC in relation to how it is required to operate the scheme and further slightly updated guidance has been issued to the wider pubic. The Direction to HMRC is not exactly in user-friendly language! The following points appear to be of relevance: -

• As we know employees must be instructed to cease all work, but the Direction says that this scheme only applies if this is agreed in writing between the employer and employee. Agreement in writing can include an exchange of emails. However, some employers who have already furloughed employees may not have specifically sought confirmatory agreement from employees in these terms – especially where contracts include a right to lay-off in the first place and there is no contractual variation involved. Therefore, I would suggest that it is worth reviewing the mechanism by which employees were put on Furlough Leave before this detail was announced to ensure that no technical failing will be argued at a later date.

April 8 - Construction Unit Update: Coronavirus

We continue to adapt as we help our clients work out whether to keep sites open during the lockdown and how to operate contract provisions rarely looked at before this pandemic was declared. It is looking likely that the lockdown will be extended and in England at least it is business if possible on construction sites. Scotland and Wales may plough their own furrow.
The latest guidance (7 April) for keeping workers safe is at:

Employment Law Update - Covid-19 - Furlough Leave – further details 

The Government has now issued further guidance filling in some of the blanks. Unfortunately, there remain obvious omissions, particularly in relation to holiday. For now, all that can be said for sure is that holiday continues to accrue during Furlough Leave. It is possible that it can be taken without interrupting Furlough Leave and that employers have to top up to normal pay whilst holiday is being taken – but that is speculation. Hopefully, further guidance will come as it would be very helpful.

Some clarifications and expansions: -

• It is possible to re-employ an individual and furlough them if they left after 29th February even if the reason for departure was not redundancy. However, before simply doing so employers should work through the consequences of that action.
• As had previously been understood it is possible for a furloughed worker to undertake work elsewhere – provided of course it is not in breach of the contract with the employer.

Employment Law - Update - Covid-19 - Coronavirus – Holidays

One thing which has left me scratching my head over the last few days – and by the sound of it also a number of clients, colleagues and contacts – is exactly how holiday interacts with Furlough Leave.

Government guidance is frustratingly silent on the topic. Some things are clear, others less so. Here are some thoughts: -

1. Holiday continues to accrue during Furlough Leave – definite!

2. The Government has introduced new regulations allowing for greater carryover of holidays. If you listen to the headlines it may be thought that this only applies to those in the emergency sector who as a result of the crisis are unable to take holidays. However, a reading of the actual regulations shows that this goes a lot further. The provision is that up to 4 weeks holiday can be carried over from the relevant holiday year for up to 2 years if it is ‘not reasonably practicable’ to take the leave as a result of the effects of Coronavirus, including the effects on the worker, the employer or the wider society. It follows that if an employee does not take holiday during Furlough Leave and afterward the work demands are such (hopefully) that the employer is not able to agree to a glut of holiday requests when things return to some sort of normality, the employer can make use of this provision. It wouldn’t be a good idea to refuse all holiday as holidays are regarded as a health and safety provision. However, it would be reasonable to fairly regulate holidays or to deny holiday during a relatively short and particularly busy period even if this meant the employee couldn’t take all his or her holiday during the relevant holiday year.

Furlough Leave: Update – Clarity for those impacted?

On 20th March, in the midst of the coronavirus crisis, the Chancellor announced the Job Retention Scheme. As you will have hopefully read in my previous posts, the Scheme operates in scenarios where an employee’s role is temporarily no longer required due to the impact of the virus. Rather than employees being left out to dry, the government scheme will pay 80% of wage costs up to £2,500 currently, for a 3-month period, but potentially to be extended.

I have previously highlighted the lack of detail surrounding the scheme; however, since then, I have been made aware of the following information. This information is not official and therefore can’t be relied upon, but it is based upon information which I understand was issued to an MP.

In short, it is believed the scheme will operate as follows:

Employment Law - Update - Covid-19 - Furlough Leave detail so much required, but Volunteering Leave now in place

The detail of the Furlough Leave scheme is desperately required. The reality is that many employers are now having to apply furlough leave even though there are only headline details about how it will operate and many questions still to answer.

In the meantime, though the Government has rushed through Emergency Volunteering Leave. A few headlines in relation to it: -

• This applies to most employers but not to those with a headcount of less than 10.

• The right will be to unpaid leave – but terms and conditions save relating to pay will continue.

• The person will be acting as an Emergency Volunteer in the health or social care sector and a certificate will be issued by the user of the volunteer which will be known as an Emergency Volunteering Certificate.

• This will provide for a period of work of either 2, 3 or 4 consecutive weeks beginning and ending within a set 16-week block.

The Coronavirus Crisis and the Impact on Landlords and Tenants

With the coronavirus crisis escalating each day, many tenants - both individuals and businesses - will face the prospect of being unable to keep up with rental payments. Indeed, with the announcement on Monday evening that UK is to enter a period of ‘lockdown’ lasting at least three weeks, many tenants may find themselves without an income, or see it significantly reduced. On the flipside, understandably, landlords will be concerned that their rental income may come to an abrupt halt.

As announced by the Ministry of Housing, Communities and Local Government, the Coronavirus Bill 2019-21 significantly changes the relationship between landlords and tenants throughout the duration of the crisis and, potentially beyond. The legislation provides additional protections for residential and business tenants. The Bill will have the following impact:

A message from the Construction Unit, to our clients past, present and future

Like you all, we are working under very different conditions. Sean and Jan are used to working from home so the transition to home working has been straightforward. The only change is that callers may hear a dog barking in the background; we are working on some training on that issue! Our first concern is for people’s physical and mental well-being, but we know some employers, contractors and sub-contractors are worried about paying and getting paid on time.

We are happy to discuss options with you from the legal to the practical. There is no charge for an initial phone discussion, and we are open to no win no fee arrangements on suitable cases. Our debt recovery department works on a percentage of fee recovered; that might be of interest to some.

Employment Law - Update - Covid-19 - Preparing to furlough!

Matters are moving so rapidly. As I put this note together the construction industry is coming under massive pressure to stop working and it is possible that by the time you read this it will have been told to stop (it is already the case in Scotland). This will make furlough leave crucial n the construction sector, but it is becoming increasingly important elsewhere too.

The Government has massive pressure on it, but it would be extremely helpful to know the details surrounding the scheme rather than just the headlines.

The Government is working very hard to get the portal through which one can reclaim through HMRC up and running and will reimburse claims going back through the month of March.

Employment Law - Update - Covid-19 - Where are we now?

Confused after last night’s announcement? From an employment perspective, the big question is whether people are allowed to attend their workplaces if the work cannot be done from home. There was confusion about whether one could only attend a workplace if it was an essential service or if it was absolutely necessary to go to work in order to carry out the work function. It appears the answer is the latter.

The Government initially said, “Travelling to and from work [is permitted] but only where it is absolutely necessary and cannot be done from home”. This wasn’t at all clear. It then published guidance saying “travelling to and from work [is permitted] but only where this absolutely cannot be done from home”.

Subsequently, Andy Burnham tweeted that he had clarification from the Government and that was to the effect that people “CAN leave home to work as long as they fully observe the 2 metre distance rule”. On that basis anyone can go to work provided the work cannot be done from home.

For employers, maximum flexibility is important e.g. avoid commute times if public transport is required.

Employment Law - Update - Covid-19 - Furlough Leave

Prior to Friday did you know the word ‘Furlough’? I must confess that I have been an employment lawyer for over 30 years, and it wasn’t a word that I was familiar with. As you will undoubtedly have heard, the Government has introduced a scheme whereby if an employee is laid off i.e. kept on the book but not given work, it will pay 80% of wage costs up to £2,500 currently for a 3-month period, but potentially to be extended. So far those are the headlines, the detail isn’t there as yet. This will be relevant to an awful lot of employers in the private sector and the detail will be much needed. For now, the following may assist: -

It is not entirely clear, but the payment would appear to be a maximum payment of £2,500 per month, so this would mean an employee normally paid just over £3,120 per month would get paid 80% of full pay. An employee who earned more than that would get a capped amount of £2,500.

Employment Law - Coronavirus Update

Nigel Tillott Head of Davies and Partners Employment Law Department on the latest Coronavirus Update:

"I hope that you are all safe and well. Matters seem to be moving very rapidly now. Yesterday there was an announcement about restrictions on the use of the Employment Tribunal system. Today there has been an announcement that there will be no hearings involving personal attendance from Monday. For now, in relation to those already listed there will be a telephone discussion to work out the best way forward.