HR briefing - March

Covid-19

Release from lockdown: the 22 February Spring Plan

All readers will be familiar with the Government’s proposals for a gradual relaxation of the Covid restrictions we have all become used to. The Spring Plan – which is available online – sets out a four-step process, which we summarise below. We have identified the key wording for each step as it affects office working. In short, the existing guidance to work from home where possible looks set to remain in place for some time. 

Step 1 (governing the 8 and 29 March relaxations)

• The Stay At Home order remains in place through 8 March, modified to allow outdoor exercise and recreation (para 93). The working from home regime remains in place during this time (“As before, people can leave home for work if they cannot work from home and to escape illness, injury or risk of harm, including domestic abuse” para 97). 
• From 29 March, new relaxations will apply to allows households to meet outdoors and play tennis etc (para 99 to 105). These relaxations mean that the Stay at Home order is lifted to allow the permitted activity. However, these relaxations do not extend to work. Instead, paragraph 106 tells us: “As a result of these changes, people will no longer be legally required to Stay at Home. Many of the lockdown restrictions, however, will remain in place. Unless an exemption already applies, it will not be possible to meet people from other households indoors and many business premises will remain shut. Guidance will set out that people should continue to work from home where they can. People should continue to minimise travel wherever possible, and should not be staying away from home overnight at this stage.” The highlighted words suggest that we can expect further guidance, but that (accepting that you do not need then an exemption to leave your house) if you can work from home, you should.

Step 2 (para 107 confirms this will not be sooner than 12 April)

• At step 2 of the plan, greater relaxations are expected but not before 12 April (“This step will reopen some sections of our indoor economy and more outdoor settings, restoring jobs and livelihoods and enabling people to access some of the activities and services which are most important to them”). 
• The focus however is on reopening some leisure and hospitality businesses rather than offices. At para 115 of Step 2 we are told that “People should continue to work from home where they can, minimise domestic travel where they can”.

Step 3 – no earlier than 17 May (para 119)

• In step 3, we are told that “all but the most high-risk sectors will be able to reopen” (para 120) but the sectors listed are all hospitality and leisure based. 
• Then we are told that even at step 3 “The Government will continue to advise the public to work from home where they can” para 125).

Step 4, subject to review, is rostered for 21 June

• Although the step 4 pictogram on page 44 suggests that “remaining businesses, including nightclubs” can expect to re-open, the emphasis is still on hospitality and leisure and not office based businesses.
• We are told that at step 4 there will be a review of social distancing and “The review will also inform guidance on working from home - people should continue to work from home where they can until this review is complete” (para 145). 

In the courts

Employment status

The long-running dispute between Uber and some of its drivers has now come to an end, with the Supreme Court delivering its judgment that the drivers are workers, just as the Employment Tribunal concluded in 2016. The Supreme Court’s focus was on the proper way of analysing cases where status is in issue (whether worker, employee, or self-employed independent contractor). The key message for clients is that the written contract will be only one of the relevant factors the Tribunal or court will take into account, having in mind at all times the essentially protective nature of the UK employment law regime. Read our full client note for further information.

Discrimination

Discrimination claims are typically brought by aggrieved employees against their employers or ex-employers. The act of unlawful discrimination complained of, of course, will actually have been committed by an individual colleague or manager, which is why the Equality Act 2010 fixes employers with liability for the acts of its employees. One escape route is set out in the legislation: an employer able to show it took all reasonable steps to prevent the unlawful act will avoid liability. Employers seeking to rely on the “reasonable steps defence” typically adduce evidence showing a commitment to equal opportunities, anti-bullying and harassment policies, training for managers, the availability of a comprehensive grievance process, and a robust disciplinary framework where discrimination is found to have occurred. This defence has recently been examined by the Employment Appeal Tribunal, in a judgment focusing particularly on training. In this case, the employer had put in place regular training, but had failed to convince the Employment Tribunal that this was effective to prevent discrimination. Despite the last iteration of the training being only 12-18 months before the dismissal, the Tribunal concluded it was stale – a decision the Appeal Tribunal did not overturn. While the decision is inevitably fact-specific, it serves to illustrate two key points for clients: (i) the reasonable steps defence is difficult for employers to run successfully; and (ii) having a comprehensive and regular staff training programme is the bare minimum needed for the defence to have any prospect of succeeding.

Confidential information

The Court of Appeal has reviewed the obligations of a person who receives confidential information. In the employment context, this is most likely to be relevant where an employee is poached from a competitor, and brings confidential information with them. In its judgment, the Court confirms the obligation is quite an onerous one: it all depends what a reasonable person would do in the same position. If, in all the circumstances, a reasonable person in the position of the recipient might think the information may be confidential, and would make further enquiries in response, then that is what the recipient should do. Where the recipient falls short, an equitable obligation of confidentiality, effectively preventing the recipient from using the information, will arise.

In the news

Government review of restrictive covenants

We noted in our December briefing that the Government had embarked on a review of the law on restrictive covenants. The consultation window has now closed, and the published responses from the Employment Lawyers’ Association and from Littleton and 11KBW, two leading sets of barristers’ chambers, make interesting reading. While they agree that there is no evidence to support a wholesale ban on non-compete provisions, there is some disagreement on whether employees should be compensated for time “out of the market”. The arguments for and against boil down to a number of difficult policy questions for Government: will requiring payment effectively mean more employees are out of the market for longer, thereby removing their skills from the wider economy, and potentially diminishing them in that time; would paid-for non-competes drive employers to use longer notice periods and garden leave to provide the necessary protection against unfair competition; would mandatory compensation result in lower salaries to leave the provision cost-neutral for employers; would payment be disadvantageous to smaller employers and start-ups; would mandatory compensation in employment contracts drive up the use of "free" non-competes in other documents, such as LTIPs or shareholders’ agreements.

Opinions in Government are likely to be divided, and the outcome of the consultation inherently uncertain. On balance, there is a reasonable likelihood the Government will introduce mandatory compensation for non-competes, and a high prospect of some sort of requirement for any non-compete to be specifically signposted to employees, perhaps backed by mandatory independent legal advice. An outright ban appears unlikely, since the common law has recognised reasonable and justified covenants, linked to legitimate business interests, since at least the 1700s, and a wholesale scrapping of this important protective mechanism would appear to be unsupported by the evidence, employers or specialist practitioners.

Annual uprating of statutory payments and limits

New figures for a range of annually uprated statutory payments and limits have been announced.  We will shortly be sending out a handy PDF so you can all the data readily available, but in case readers want to plan ahead, the key headlines are as follows.

• The main National Minimum Wage, which currently applies only to workers age 25 or over, will be extended to 23 and 24 year olds for the first time, and increased to £8.91 per hour.
• The statutory cap on weekly pay will increase to £544. Consequently, statutory redundancy pay will increase, with the maximum payment increasing to £16,320.
• The cap on the compensatory award for ordinary unfair dismissal claims will increase to £89,493 (or 52 weeks’ gross actual pay, if lower).
• Statutory sick pay (SSP) will increase to £96.35 per week.
• Family leave pay (statutory maternity pay, adoption pay, paternity pay, shared parental pay and parental bereavement pay) will increase to £151.97 per week.