In this quarters update we look at recent updates linked to the governments Job Retention Scheme (‘furlough’) along with the impact of Covid-19 on the Tribunal system.

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Legislation Updates / Case Law

Paying Statutory Sick Pay for Self-Isolating

Employees are eligible to receive statutory sick pay (SSP) where they cannot work from home, provided they meet the other qualifying conditions for SSP:

Previously, an employee qualified in any of the cases where:

• they have tested positive for Covid-19 (coronavirus);
• they have coronavirus symptoms;
• they are living with someone with coronavirus symptoms;
• they are in the same social support bubble as someone with symptoms or who has tested positive;
• they have been told to self-isolate by NHS Test and Trace or by a Public Health official.

The Government have recently also added the following to the above allowable cases.

• they have been advised by a medical professional or their GP to stay at home for a period of up to 14 days being admitted to hospital for the purpose of undergoing a surgical or other hospital procedure.

“Waiting days” for the first period of sickness incapacity don’t apply in the above circumstances and SSP is payable from the first day of absence. If your employees can work from home whilst they are self-isolating, they should receive their normal pay

Forcing Employees to take Annual Leave whilst on Furlough

Generally, employers can require employees to take a period of annual leave during the coronavirus (COVID-19) outbreak (unless a contractual / collective agreement states to the contrary), provided that they give the employee the required notice of at least twice as long as the period of leave it requires them to take.

Where an employee is furloughed, the Government have ‘tweaked’ their guidance to now state “If an employer requires a worker to take holiday while on furlough, the employer should consider whether any restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday.”

While case law has found that employees can be required to take annual leave at a time when they would not otherwise be working (Russell and others v Transocean International Resources Ltd and others [2012] IRLR 149 SC), it is unclear if the same principles would apply during furlough. Therefore, if an employer does wish employees to use their holiday while furloughed, it should seek their agreement to this to avoid any potential risk, rather than imposing a period of annual leave on them.

Keeping within pay constraints justified discriminatory pay policy

In the long-running case Heskett v Secretary of State for Justice, the Court of Appeal confirmed that the employer’s need to reduce expenditure due to budgetary constraints imposed by the Government is a legitimate aim, and the employer’s discriminatory pay policy is a proportionate means of achieving that aim.

Here, changes to the employer’s pay progression policy meant that newly appointed probation officers took 23 years to progress to the top of the pay scale, instead of the previous seven or eight years.  A probation officer brought a claim of age discrimination, arguing that the pay progression policy indirectly discriminated against younger probation officers.

The Court’s decision will be of interest to employers that have to balance cost savings with avoiding discrimination.

The Impact of Covid-19 on the Employment Tribunal System

In these difficult and uncertain times for many employers and their staff, the impact of Covid-19 is being seen in many ways.  Employers are taking action to address their business concerns, with many smaller businesses especially simply trying to stay afloat, and employees facing having their contracts terminated and an uncertain future.  The combination of these is leading to an increase in Employment Tribunal cases being lodged.

The current pandemic is having a major impact on Employment Tribunals with the system struggling to deal with a backlog in cases, leading some regions to fix dates for employment tribunal hearings as far ahead as 2022.  The number of individual employment claims waiting to be heard reached almost 40,000 towards the end of last year according to new Ministry of Justice figures. The backlog has increased from around 31,000 cases in March 2020 and is almost double the outstanding claims recorded in March 2018.  The backlog has been made worse because many tribunal buildings cannot be used to their full capacity because of social-distancing constraints and lockdowns.  Having cases unresolved is clearly not good for employer nor employee.

Many are expecting unemployment to increase as the furlough scheme comes to an end, and lawyers are already seeing an increase in inquiries from people considering taking action against employers over redundancies.

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• Managing Discipline & Grievance
• Influencing Styles and Persuasive Negotiating
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More details on each of the training courses can be found on our website.

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