HR Briefing - July 2020
Coronavirus Job Retention Scheme
The formal rules governing the July-October extension of the government’s furlough scheme have been published. The extension of the scheme allows for greater flexibility in working patterns, but sees the government’s financial contribution taper month by month until the scheme ends on 31 October. The rules are complex, so please feel free to speak to one of the Employment team if you have any questions.
Many organisations will have been grappling with the data privacy implications of their back to work proposals, with temperature checks, antibody tests, and employees’ Covid status just some of the data that might be collected or processed as the lockdown unwinds. For more information, see our note on these issues and the ICO guidance for employers.
Macfarlanes’ Covid-19 hub has a wide range of useful on all aspects of the current crisis, from employment to insurance.
In the courts
The majority of employment disputes are resolved without a tribunal hearing, either by a settlement agreement under which the employee receives independent legal advice, or a COT3 agreement under which the advice is given by Acas, who also broker the deal. In each type of document, confidentiality provisions are very common, and often of critical importance to one or both parties. In a recent High Court case, the ex-employee breached the confidentiality clause in their COT3 agreement, and the court had to determine whether the employer was therefore free to withhold the remaining installments of the settlement payment.
Contract law divides terms into three categories: conditions, warranties and innominate (or indeterminate) terms. What the wronged party can recover depends on the category – in this case the question was whether the confidentiality provision was a condition of the agreement. Because confidentiality was not at the heart of the agreement, the Court held it was an innominate term and not a condition, and since the employee’s breach did not go to the root of the contract and so was not a repudiatory breach. Without any demonstrable commercial harm, the employer was left without any claim for damages, and still had to pay the remaining instalments. Where confidentiality is a particularly significant part of a deal, parties should consider expressly labelling the relevant clause as a condition of their agreement.
In the news
Readers will be aware of the #BlackLivesMatter movement. We recognise that many organisations will be considering their policies in light of this movement, whether by promoting education or encouraging reflection on issues connected with race, or reviewing recruitment, promotion and reward processes to check and address any racial imbalances. Some of those responses engage complex legal questions and we would be happy to discuss them with clients.