Employment Matters: Public Health - March 2021

Published 4 March 2021

DAC Beachcroft's Employment Matters focuses on some of the most interesting cases and events occurring within the Employment Law sector.

Furlough extension

The Chancellor announced in the Budget that the furlough scheme has been extended and will now end on 30 September. It was due to end at the end of April.

The employer’s contribution will increase from July 2021 in a similar way to that which was in place when the Government intended to phase out the scheme last October. In July, the employer must pay 10% for unworked hours plus employer NICs and pension contributions.  In August and September, the employer contribution will increase to 20%. Read the policy paper here.

The cut-off date for eligibility for furlough has also been extended. For periods starting on or after 1 May 2021, employers can claim for employees who were employed on 2 March 2021, as long there was an RTI submission to the HMRC between 20 March 2020 and 2 March 2021, notifying a payment of earnings for that employee.  

We also expect that there will be additional guidance issued later on how to make the calculations for periods starting after 1 May 2021, and will keep you updated.

There have been quite a few case law developments this month. We have already alerted readers to the fact that the Supreme Court upheld earlier decisions finding that Uber drivers should be classified as ‘workers’, not independent self-employed contractors. Our alert can be found here.

We also successfully acted in an EAT case which held that an award of lifetime compensation should be rare for health claimants. Our alert about this case can be found here.

Other case law developments of interest this month include:

1. Discrimination: “Stale” diversity training

An employer’s diversity training had become stale and needed refreshing, leading the tribunal to reject the employer’s reasonable steps defence.

Read more

2. Indirect Discrimination: “Particular disadvantage” involves looking at those impacted by the policy

When determining whether a policy was indirectly discriminatory against women because of their greater childcare responsibilities, a tribunal erred in considering that the policy applied equally to men and women. It should have considered whether the policy put women at a particular disadvantage.

Read more

3. Confidential Information: The dangers of using information provided by new members of staff

Employers receiving information from new staff members should consider questioning whether that information is confidential to the previous employer.

Read more

4. Constructive Dismissal: Engaging in a grievance procedure does not undermine a constructive dismissal claim

An ex-employee who had engaged in his employer’s grievance procedure before claiming constructive dismissal had not affirmed his employment contract.

Read more

In terms of legislative changes ahead readers should note:

5. Gender Pay Gap Reporting: Enforcement of gender pay gap reporting suspended for six months

In light of the continuing effects of the pandemic, the Government Equality Office has announced that it is suspending the enforcement of gender pay gap reporting until 5 October 2021. This means that employers effectively have an additional 6 months grace to report their gender pay gap information for the 20/21 reporting year (which uses a snapshot date of 31 March 2020 and 4 April 2020 for public and private sector bodies with 250 or more employees respectively).

6. IR35: Briefing issued by HRMC

As employers will be aware, changes to the off-payroll working rules are due to apply from 6 April 2021, having been postponed because of the pandemic. HMRC has issued a briefing which explains the approach that HMRC will take for new compliance activity for the changes to the off-payroll working rules, setting out the support that HMRC propose to give to organisations who are trying to comply with the changes.

Please see the briefing here.

7. Public Sector Exit Payments – Cap on £95k revoked and new regulations made

Please see our earlier alert here. Since writing this, the Government have published new Regulations which formally revoke the Restriction of Public Sector Exit Payments Regulations 2020 (the Cap Regulations).  The new Regulations will come into force on 19 March 2021.

The new Regulations provide that anyone who received an exit payment from a relevant public sector body between 4 November 2020 and 19 March 2021, and who would have been entitled to receive a greater amount had the Cap Regulations not applied, will now be entitled to an additional payment. The additional payment will be the difference between the amount of the payment made and the greater amount that would have been payable, together with interest accrued.

As indicated in our previous alert, employers who are approached by former employees about a termination payment that has been capped are advised to take further advice from their legal advisors, particularly where they have agreed a termination with the employee and payments have been made following a Settlement Agreement or ACAS COT3 Agreement.