REUTERS | larry downing

The government has recently announced an unprecedented lockdown requiring people across the UK to stay at home to tackle the 2019 novel coronavirus disease (COVID-19) outbreak. The consequent restrictions on individual liberties undoubtedly engage the right to a private and family life under Article 8 of the European Convention on Human Rights (ECHR). This right can be limited in certain circumstances, including where necessary for the protection of health. Considering the danger to life posed by COVID-19, the governments restrictions in this instance are likely to be justified and proportionate in the circumstances. 

There are, however, cases where the question of whether the states interference with the right to respect for private life is lawful is less clear-cut. The recent Court of Appeal case of R (Elan-Cane) v Secretary of State for the Home Department [2020] EWCA Civ 363 is one such example. 

The background to the case is whether the government should allow X as a gender marker on UK passports. The High Court initially found that Article 8 was engaged by the appellants non-gendered identity, but that the state did not have a positive obligation to allow X as a passport gender marker. Although the appellants appeal to the Court of Appeal was unsuccessful on this occasion, Lady Justice King made the point that the time will come when the states position is no longer tenable. This case is an example, therefore, of where the answer to whether there has been an unlawful breach of Article 8 may vary over time. 

On the subject of whether Article 8 was engaged on this occasion, King LJ held that:  

it is obvious and indeed beyond argument that the facts of this case concern the Appellant’s private life and engage Article 8. There can be little more central to a citizen’s private life than gender, whatever that gender may or may not be. No-one has suggested (nor could they) that the Appellant has no right to live as a non-binary, or more particularly as a non-gendered, person. Indeed, a gender identity chosen as it has been here, achieved or realised through successive episodes of major surgery and lived through decades of scepticism, indifference and sometimes hostility must be taken to be absolutely central to the person’s private life. It is the distinguishing feature of this Appellant’s private life.” (Paragraph 46.) 

In considering whether the state has a positive obligation to allow X as a gender marker on UK passports, the Court of Appeal noted that, although the object of Article 8 is to protect the individual against arbitrary interference and the obligation inherent in Article 8 is primarily a negative one, there is also a positive obligation ingrained in an effective respect for private or family life. Following on from that, the Court of Appeal held that, in considering whether there is a positive obligation, and if so, how it should be given effect, the state enjoys a certain margin of appreciation, which may be wide or narrow, depending on the circumstances. 

The Court of Appeal held that it had to consider: 

  • Factors relating to the identity in question (the identity issue). 
  • Factors concerning the state and its systems (the coherence issue). 
  • The position in other states in the Council of Europe (the consensus issue).

On the identity issue, the Court of Appeal acknowledged that the appellant had a justifiably strong personal interest in gaining full legal recognition as a non-gendered person and upheld the High Courts assessment of the impact on the appellant of the discordance between the social reality and the law. King LJ did note, however, that the High Court had been justified in considering the limited nature of the appellants complaint (that is, focused on the specific target of gender markers on passports).  

On the coherence issue, King LJ held that it was permissible for the government to not consider the issue of gender markers on passports in isolation and that it was reasonable to consider it as part of a more fundamental review in relation to gender identity issues. King LJ dismissed the government argument that security issues, including combating identity fraud and theft and the need for security at borders, should affect the fair balance between the interests of the individual and the community. (Paragraphs 70 and 71.) 

In reaching its decision on the consensus issue, the Court of Appeal considered the cases of Rees v United Kingdom (1987) 9 EHRR 56 and Goodwin v United Kingdom (2002) 35 EHRR 18, which related to the UKs margin of appreciation in relation to whether the state should allow a trans person to amend their birth certificate to reflect their affirmed gender. Although the challenge in the case of Rees had been unsuccessful, a similar challenge in Goodwin was successful on the basis that the consensus regarding legal recognition of affirmed gender in the context of trans people had changed in the intervening years. The European Court of Human Rights noted in Goodwin that the court should maintain a dynamic and evolutive approach to interpreting and applying the ECHR. 

In this case, however, King LJ held that there was not enough of an international consensus to impose a positive obligation on the state at this time: 

“Looking at the totality of approach to gender identity issues world-wide and the information made available to the court, it seems to me that, whilst the direction of travel, or “trend”, is undoubtedly moving towards the recognition of the status of non-binary people, there is, as yet, nothing approaching a consensus in relation to either the broad and indeterminate issue of the recognition of non-binary people, or the narrow and precise issue of the use of “X” markers on passports which is before this court.” (Paragraph 84.) 

The Court of Appeal noted that, in determining whether a positive obligation exists under Article 8, a fair balance has to be struck between the competing interests of the individual and the community as a whole. On the facts of this case, the Court of Appeal upheld the High Courts decision that there was no positive obligation to provide an X marker in UK passports. King LJ did, however, give a clear indication that the position may change over time, stating that: “If, as here, Article 8 is engaged, there is a respectable argument that we are approaching a time when the consensus within the Council of Europe’s Member States will be such that there will be a positive obligation on the State to recognise the position of non-binary including intersex individuals. (Paragraph 108.) King LJ went on to note that: there is an undoubted momentum within Europe in relation to just how the status of non-binary people is to be recognised. The time may come when the importance of these issues and the Article 8 rights of non-binary people will mean that the fair balance has shifted and that, as in Goodwin, the margin of appreciation as to recognition of a positive obligation will be exhausted.” (Paragraph 109.) 

It is understood that the appellant in the case intends to appeal to the Supreme Court. As mentioned by King LJ, the European Court of Human Rights has not as yet been confronted with a case in which it was required to analyse non-binary gender in ECHR terms (paragraph 45). Depending on what happens with any further appeal, this case may end up being the first time it does so. It is also likely that the case will be relied on in any future challenge regarding legal reform in this area. Remembering the Strasbourg Courts words in Goodwin, its dynamic and evolutive approach to interpreting the ECHR may soon lead to a welcome finding that the state does have a positive obligation to provide legal recognition of non-binary and non-gendered identities. 

REUTERS |

Over the last four months or so, we have all become rather more familiar than we would have liked with COVID-19 (or coronavirus, as it is better known), with a return to masks on the Underground (retro from the SARS virus (2003) and swine flu (2009)), suspicious glances at anyone with a cough and endless monitoring of the government’s now pandemic (declared by the World Health Organisation on 11 March 2020) map showing the spread of the virus. Sales of antibacterial hand gel, face masks and tinned produce have rocketed, while the stock market has nosedived (almost 9% on Monday 9 March 2020 and almost 25% since the beginning of the year).

The concern is very real. As of Wednesday 11 March 2020 (the government publishes updated figures at 2.00 pm each day), there were 456 cases of coronavirus in the UK. That was from over 27,000 people who have been tested. However, the Medical Director of Public Health England (PHE), Professor Paul Cosford, has declared that it is now “highly likely” that there will be widespread transmission in the UK and has advised that we must all be prepared. The Cobra Committee has been convened (signifying a “crisis or emergency” situation).

This blog looks at the implications of coronavirus pandemic for employers and employment lawyers. The outbreak raises issues of immigration law, employment law, health and safety, and data protection. All are briefly considered in this blog, with the usual caveat that specific legal advice may well be required to address particular cases. That applies in the employment law area more than in other areas.

The implications have already become all too real for many high-profile solicitors firms, with Latham & Watkins postponing its annual global partnership meeting in New York and Baker McKenzie’s London office only re-opening last week following closure when an employee was taken ill (the employee subsequently tested negative for coronavirus). Baker McKenzie’s staff joined non-legal sector employees from, among others, Chevron and Crossrail, who have been asked to work from home as a precaution. It is a list that is expanding by the day.

In these fast-moving and ever-changing situations, it is often difficult to filter the fact from the fiction. Unfortunately, some of the fiction, from a legal and employment law perspective, has come from official government guidance issued by the Health Secretary Matt Hancock and (usually more reliable) ACAS.

Issues that could arise include the following (although there are likely to be numerous other issues on a case-by-case basis).

Entitlement to sick pay

The entitlement to sick pay for employees who have coronavirus is an issue on which the official advice and guidance published by the government (through the Health Secretary) is far from comprehensive or, to be frank, even accurate. The same issues arise for employees who are on self-enforced isolation as a precaution, who are caring for a relative with coronavirus or who are responsible for looking after children sent home from schools that are closed.

Even with regard to the “obvious” case (that is, actual sickness due to coronavirus), the position is not straightforward. The starting point with regard to entitlement to sick pay is the employee’s contract or any terms implied through custom and practice with regard to the payment of sick pay for genuinely ill employees (Albion Automotive Ltd v Walker [2002] EWCA Civ 946). Many employers have contractual terms that provide only for the payment of statutory sick pay (SSP), with the possibility of a discretionary payment of contractual sick pay.

If there is no contractual right to sick pay, then the employee is only entitled to SSP (currently £94.25 per week). Tax and National Insurance will be deducted. Even then, there is ordinarily no right to be paid for the first three days of sickness absence (referred to as “waiting days”) before the “qualifying days” of up to 28 weeks’ SSP kick in. That period is likely to be sufficient unless a much more serious illness (usually pneumonia) is contracted as a result of coronavirus.

Addressing concerns about the three-day deferred period, the government announced last week that it would be suspended for the duration of coronavirus and, importantly, for all absences with illness, whether related to the coronavirus or not. In yesterday’s Budget, the Chancellor appeared to backtrack on this, however, stating that it would be paid “for people who have COVID-19 or have to self‑isolate, in accordance with government guidelines”. Eligibility will, however, be extended to both:

  • Individuals who are unable to work because they have been advised to self-isolate (presumably regardless of whether or not they have symptoms).
  • People caring for those within the same household who display COVID-19 symptoms and have been told to self-isolate.

However, that is very unlikely to be correct with regard to contractual sick pay. The vast majority of contractual definitions of sickness absence would not cover periods of self-isolation when the employee was not in fact ill.

It is also not correct under the Statutory Sick Pay (General) Regulations 1982 (SI 1982/894), so amending Regulations will be required. Currently, an employee who is not incapable of work can only claim SSP if he or she abstains from work pursuant to a notice “made under an enactment … by reason of it being known or reasonably suspected that he is infected or contaminated by, or has been in contact with a case of, a relevant infection” (regulation 2(1)(b)). The entitlement to SSP for those on voluntary isolation will not apply unless and until the government passes an enactment (that is, regulations or an instrument made under an Act; see regulation 2(3)) declaring coronavirus a “relevant infection” and issuing instructions for notices to exclude or refrain from work to be issued by employers. We are informed that the necessary enactments will be passed. However, at the time of writing, they have not been.

In the Budget, the Chancellor also announced that:

  • The government will reimburse small employers (with fewer than 250 employees) any SSP paid for the first 14 days of sickness in relation to COVID-19.
  • Contributory Employment and Support Allowance (ESA) benefit claimants directly affected by COVID-19 or self-isolating according to government advice will also be able to claim SSP from day one.

Those on casual, zero-hours and agency workers contracts should be able to claim SSP, on the same terms as above, but only subject to earning a minimum of £118 per week over the previous reference period (usually 13 weeks). There has been no relief on that requirement implemented by the government, leaving an estimated two million of the lowest-paid and most vulnerable workers having to fend for themselves. The government advice (to turn to benefits) is unlikely to be satisfactory, given qualifying periods and the administrative delays in applying. The self-employed will certainly have to fend for themselves.

A further issue that potentially arises is if the absence because of coronavirus (whether because of actual illness or because of isolation) triggers an employer’s unsatisfactory attendance sickness absence policy. Such policies are, by definition, dealing with genuine absences for genuine reasons. There is no reason in principle why absences for coronavirus should be treated any differently to genuine absences for other causes. No disability discrimination issues should arise from the coronavirus itself as the symptoms are unlikely to last for more than 12 months. However, employees with some disabilities, such as auto-immune conditions, respiratory conditions or diabetes, are likely to suffer more severe symptoms (and therefore take greater time off work) if they catch the virus.

The dismissed employee would be left in these circumstances simply with an argument that a dismissal triggered by a coronavirus-related absence was outside the range of reasonable responses of a reasonable employer. The prospects of success of that argument would be improved if the government has passed the relevant instrument referred to above. In any event, like all “range of reasonable responses” arguments, the employee would face an uphill battle before the tribunal.

In the Budget, the government has taken the radical step of extending SSP provision to employees who take time off work to look after a sick member of their household who displays COVID-19 symptoms and has been told to self-isolate. However, even the government and ACAS guidance is not suggesting that those who take time off for childcare reasons because, for example, a school has been closed for a two-month period (as has been suggested for certain regions) would be entitled to SSP (or contractual sick pay). The only options for the employee in those circumstances is to appeal to the employer’s better nature (for example, by asking to work at home) or to use holiday entitlement or seek out a contractual entitlement to leave for childcare or care reasons.

Can an employer compel workers to take paid holidays to facilitate self-isolation?

Decisions as to when a worker takes annual leave entitlement under the Working Time Regulations 1998 (SI 1998/1833) (WTR) are often thought, and stated to be, ones to be made by the worker. This is not correct. An employer can compel workers to take the leave to which they are entitled (under regulation 13) on particular days (regulation 15(2)(a), WTR). This was, for example, enforced in the Staffordshire pottery industry with the kilns being shut down for “Potter’s fortnight” and workers obliged to take leave during the shutdown. While it may not be popular, an employer could use its powers under regulation 15(2)(a) to force a shutdown (for an isolation period) and compel workers to use their holidays during the shutdown period. The employer would, however, be required to give notice of at least twice the length of the period of leave that the workers are being ordered to take (regulation 15(4)(a)).

Can employees be compelled to travel to higher-risk countries for business purposes?

There would appear to be four main arguments preventing an employer from insisting that an employee must travel to a genuinely high-risk country as follows:

  • It would amount to a breach of the duty of care owed by an employer to an employee. An employee who contracted coronavirus while travelling to the high-risk country at the employer’s insistence could, potentially, make a personal injury claim against the employer if he or she subsequently contracted coronavirus.
  • It would amount to a breach of the implied duty of trust and confidence between employer and employee, potentially entitling the employee to resign and claim constructive dismissal.
  • An employee in circumstances of serious and imminent danger is entitled to remove themselves from that danger and cannot be subjected to any detriment on that ground (section 44(1)(e), Employment Rights Act 1996 (ERA 1996)).
  • There is an implied term in an employee’s travel clause that travel requirements must be reasonable.

Can either employers or employees insist on homeworking?

Whether the employer can insist on homeworking will depend, in the first instance, on whether there is a contractual mobility clause that is sufficiently widely drafted to include homeworking. However, given the duty of care on an employer to take reasonable steps to protect employees from foreseeable risks, there is likely to be an implied term that an employer can insist on homeworking in the circumstances of a coronavirus pandemic.

An employee can generally not insist on working at home. The argument would have to be made by the employee that they are in serious and imminent danger by being in the workplace and that they are removing themselves from the workplace accordingly (section 44(1)(e), ERA 1996). That may be a credible argument if there have been actual cases of coronavirus in the workplace, or it may be a reasonable adjustment where the nature of a disabled employee’s disability makes them more likely to suffer serious effects from the virus. It is unlikely to work if the employee is simply worried about an unidentified and non-specific risk.

Can an employer take steps to prevent an employee who refuses to self-isolate from accessing the workplace or from having contact with other employees or clients?

The simple answer to this question is yes. Indeed, an employer owes a duty of care to other, non-infected or low-risk employees to protect them from the risk of infection. An employer can therefore insist on an employee not attending the workplace in circumstances in which there is a genuine risk of them infecting other employees.

The key issue is whether the employee would be entitled to be paid in those circumstances.

An employee is entitled to be paid if they are “ready, willing and able” to attend the workplace even if, for whatever reason, the employer decides that they should not do so. That is likely to be the position of the employee in question (although it is possible to construct an argument that the employee is not “ready” for work if actually infected with coronavirus).

What is an employer entitled to communicate about an employee who has coronavirus?

The Data Protection Act 2018 defines information about an employee’s health as a “special category of personal data”. This means that it can only be processed by the employer in defined and restricted circumstances.

It seems to me very unlikely that an employer would be able to justify the public naming of an employee who had contracted coronavirus since this is simply not necessary. The same purpose (of alerting other employees to the risk of infection) can be achieved by the employer simply stating that an unidentified employee has contracted the virus.

Dealing with Chinese national employees who are unable to return as a result of travel restrictions

This a complex area outside the scope of this blog. The Home Office has confirmed that leave to remain for Chinese nationals working in the UK who are unable to return due to travel restrictions and whose leave to remain would otherwise expire will be extended automatically to 31 March 2020. Full details are on the Home Office website.

Employment lawyers should probably prepare for long working hours, albeit possibly from the office at home.

REUTERS | John Kolesidis

In most cases, a worker has no right to receive an employment reference when they leave their job. Whether this is adequate is up for debate. 

  I am determined to make the UK the best place to work and grow a business  – including levelling the playing field between employees and employers. 

These words in late 2019 from Andrea Leadsom, former Secretary of State for Business, Energy & Industrial Strategy, form part of a wider proposal to reform the responsibilities of employers when it comes to the end of the employment relationship.  Continue reading

REUTERS | Corbis

Employers occasionally face the problem of a disgruntled former employee who, once dismissed, makes a series of critical comments as regards the former employer to a variety of persons, asserting at all times those comments are lawful as protected disclosures (PDs). Often such persons consider that they can act with impunity as a result of their asserted whistleblower status.  

In this blog, Nicholas Siddall QC analyses the recent High Court decision in Pertemps v Ladak [2020] EWHC 163 and the extent to which it may offer an employer a remedy in these circumstances.  Continue reading

REUTERS | Yves Herman

This is the question which the employment tribunal has recently grappled with in Forstater v CGD Europe and others. 

Ms Forstater was a researcher who worked for the think tank CGD. She claimed that her contract was not renewed because of views she expressed on social media and elsewhere regarding transgender persons and proposed changes to the Gender Recognition Act 2004 (GRA 2004)  Continue reading

REUTERS | Hannibal Hanschke

Just over two years since the rise of the #MeToo movement in the wake of the Harvey Weinstein sexual abuse allegations, #MeToo continues to spark increased scrutiny around workplace misconduct. The focus of this has largely been on discriminatory treatment, sexual harassment and assault, all of which is non-consensual  Continue reading

REUTERS |

In competitive business environments and industries, it is becoming increasingly common for employers to incentivise their employees by offering additional remuneration in return for good performance and achievement of targets. Such “variable pay” can take various different forms, including cash bonuses, commission or profit share, and awards under long-term incentive plans (LTIPs) (for example share options, restricted shares or phantom options or shares). 

LTIPs, by definition, effectively lock in employees by measuring performance over time, so that awards will only vest or become exercisable once specific performance targets and conditions have been met. However, other forms of variable pay are not retained or withheld for such lengthy periods. This is to ensure performance is as good as initially thought and that there are no nasty surprises. In some cases, variable pay is not only awarded on retrospective performance but by way of forward payment (for example signingon bonuses or awards made before performance has been verified and accounts audited). Continue reading

REUTERS | Denis Balibouse

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REUTERS | Michaela Rehle

Directors beware

In 2017/2018, HMRC identified a record £15.6 million in national minimum wage (NMW) underpayment. More than 200,000 workers were found to have been underpaid, the highest number since the NMW came into force in 1999. Employers were fined £14 million, also a record amount, and more than three times the previous year‘s figure. 

With the government’s increased focus on enforcing the NMW, directors of errant companies would be wise to heed the recent decision of Antuzis v DJ Houghton [2019] EWHC 843 (QB). In Antuzis, the High Court determined that where the officers of a limited company were deliberately involved in causing the company to pay workers below the NMW, they may be held to be personally liable to those workers in the civil courts for the tort of inducing a breach of contract.  Continue reading

REUTERS | David Gray

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