We have a confession to make. In our article at the start of the year, “What’s to come in employment law in 2020”, we didn’t mention any of the following:-
- Flexible furlough
- Statutory Sick Pay
- Social distancing
We hope we can be forgiven for not knowing exactly what was ahead of us at the start of the year. We doubt many people’s 2020 turned out the way they expected.
In this article, with the benefit of hindsight, we take a look at some of the major developments in employment law in 2020. Let’s start with the non-covid-related matters first:-
LRA Pre-claim conciliation (in Northern Ireland)
Since late January, anyone intending to bring a claim to the Tribunal has to first approach the Labour Relations Agency to discuss the possibility of settling their case before Tribunal proceedings are issued. To lodge the claim, the individual needs to obtain a Certificate from the LRA to confirm that pre-claim conciliation has been attempted.
Also, any employer seeking to make a referral to the LRA to enter into a settlement agreement with an employee or former employee must register with the LRA’s online portal. We have assisted many clients this year with these LRA referrals. The online system is not without its problems but our experience of the LRA Officers themselves has been positive. They have always been very good at assisting the employer and the employee in reaching an agreement.
Changes in GB
Significant changes came into force in GB in April. Workers, as well as employees, became entitled to a statement of “written particulars” not later than the day they commence work. In addition, the statement must make reference to training, other paid leave and probationary periods.
Also, the reference period for determining an average week’s pay changed from 12 weeks to 52 weeks.
Parental Bereavement Leave came into force in GB in April 2020. We await the introduction of this right to Parental Bereavement Leave in NI and will let you know when it comes into force.
It’s hard to know where to begin with the impact coronavirus has had on employment law in 2020.
Back in March, before anyone had even heard of furlough, we were advising clients who were suffering a downturn in trade or voluntarily closing their premises in a bid to slow the spread of the virus. Back then, we were advising on short-time working and temporary lay-off.
Then, the Chancellor announced the Coronavirus Job Retention Scheme and everything shifted away from lay-off to furlough. We sought to keep clients updated with the many changes to the rules of the Scheme, including what circumstances were or were not appropriate circumstances in which employees could be furloughed and whether or not annual leave could be taken when employees went on furlough. We provided templates for agreements with employees going on furlough.
The furlough scheme was due to end in June, then was extended to July, then August, September and October. From 1st July, flexible furlough was possible, where employees could do some work and be placed on work for the difference between their contracted hours and the hours they were working.
The scheme was due to be replaced by the Job Support Scheme on 1st November but at the last minute (literally the night before!), the Job Support Scheme was shelved in favour of extending the furlough scheme until the end of March 2021. Cue further rounds of template letters and agreements for clients to issue to employees as first we sought to move employees from the furlough scheme to the Job Support Scheme, then to extend furlough agreements.
Hopefully, the position is now settled and there will be no further changes until the scheme ends. Employers should however be aware that, from 1st December, no employee can be placed on furlough if they are serving a contractual or statutory notice period.
Unfortunately, as the Chancellor said himself, it wasn’t possible to save every job. We assisted many clients through redundancy processes and this was a difficult time for the employers and employees involved. As the government started asking employers to contribute more to the cost of employee’s wages on furlough (first national insurance and pension, then 10% and then 20% of wages), employers began to assess whether jobs were going to be viable in the medium to long-term and reduce the number of employees accordingly.
Whether or not the extension of the furlough scheme will be enough to save other jobs or will simply delay employers introducing a further round of redundancies in the early part of 2021 remains to be seen.
Extension of entitlement to Statutory Sick Pay
Employees are generally only entitled to SSP after serving three unpaid “waiting days”. The government decided that, if the reason for the absence was covid-related, the employee would not have to serve the waiting days and the employee would be entitled to SSP from day one. The government also expanded the circumstances in which employees are entitled to SSP to include if they were having to isolate because they had close contact with someone who had tested positive. We advised on many complicating factors regarding the expanded entitlement to SSP including whether or not an employee entitled to SSP because they had close contact with someone who tests positive for the virus also meant that contractual sick pay was payable in these circumstances or whether employers could still limit contractual sick pay to circumstances when the employee themselves was unfit for work.
Due to the huge numbers of people required to self-isolate and therefore entitled to SSP, it was a relief to employers that they could reclaim up to two weeks of SSP for anyone entitled to SSP due to a reason related to coronavirus. However, this concession only applies to the employer once. If the same employee has to isolate again, the employer cannot re-claim the SSP the second time.
Carrying over holiday
The government announced that if leave could not be taken in this holiday year, because of coronavirus, up to 4 weeks could be carried over and taken in the next two years. Our advice was that, wherever possible, leave should still be taken this year as carrying it over can lead to operational issues and increased costs if employees leave their employment without taking accrued leave as they would have to be paid in lieu for the accrued but untaken annual leave.
We eventually established after several weeks of the furlough scheme being in place that the government said that annual leave could be taken when employees are on furlough so, unless an employer’s business was too busy because of coronavirus to permit holiday to be taken this year, there was no reason for holiday not to be taken this year.
Working from home
Many of us have experienced the pros and cons of working from home this year. Not having to commute and being able to move from one meeting to another without having to move away from your desk was certainly more efficient but there is sometimes no substitute for face to face contact.
We advised clients on some issues relating to working from home including how to monitor what work was being undertaken, keeping in regular contact with employees working at home and making sure employees understood the data protection issues of working from home.
Finally on the covid-related front, we advised on many circumstances where employees breached the coronavirus rules and the employers had to take disciplinary action. The two most common circumstances involved employees attending illegal house parties and failing to quarantine upon return from a country on the quarantine list.
Many employees may feel that what they do outside of work is not their employer’s business but if their actions outside of work break the law and therefore put themselves and their colleagues, customers or service users at increased risk, then employers can and should take disciplinary action.
2020 has been quite a year. We’re not going to make too many predictions about what 2021 will involve. We will however write to you in January with a few ideas of what to look out for. In the meantime, have a great Christmas and a Happy New Year.