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June 11, 2020

Is consultation on health and safety required before a return to work? 

The Treasury has reported that more than eight million UK workers have been furloughed since the Coronavirus Job Retention Scheme (CJRS) was introduced in mid-March 2020. The self-employed equivalent scheme has seen more than two million applications for grants so far, which could mean a total of approximately one-third of the working population of the UK are currently, or have been, furloughed. 

Although there will inevitably be high numbers of redundancies brought about by insolvent businesses and reduced work in the ensuing economic recession, most workers will return to their previous roles over the next four or five months. One of the main challenges for employers is how they can resume operations safely to avoid the spread of infection and the heightened risk that the 2019 novel coronavirus disease (COVID-19) poses. It is also crucial because failing to provide a safe and suitable working environment is unlawful, giving rise to criminal and civil liability. 

The measures that are necessary to protect workers are specific to each workplace and although the government has provided sector-specific guidance, the obligation is on every employer to assess and minimise the risk for their particular environment. There will be changes common across most businesses, including increased hand-washing and cleaning facilities to ensure good hygiene practices and separating or distancing workers to promote safe working. 

Risk assess 

All employers have a duty to protect their workers from harm. This involves assessing any risk to which workers are exposed and taking all reasonable steps to remove or minimise those risks. The Management of Heath and Safety at Work Regulations 1999 (SI 1999/3242) makes such a risk assessment mandatory.  

During the pandemic and for as long as COVID-19 continues to pose a threat to illness, injury or life, special consideration will have to be made for the risk it poses. This includes thinking about which workers, customers, service users, suppliers and members of the public might be at risk, deciding how severe that risk is and determining the action that can be taken to remove or at least control the risk(s).  

There is an expectation from the government that employers with more than 50 employees publish their risk assessments online and a legal requirement to write down a risk assessment where five or more employees are employed. 

This duty on employers is a first step, but it is necessary to consult with workers when implementing the risk avoidance measures. What is conflicting between the various guidance and the legislation is whether employers are obliged to consult with workers collectively through representatives, or directly. 

Consultation: the guidance 

The Working safely during coronavirus (COVID-19) guidance published by the Department for Business, Energy and Industrial Strategy on 11 May 2020 states: 

“You must consult with the health and safety representative selected by a recognised trade union or, if there isn’t one, a representative chosen by workers. As an employer, you cannot decide who the representative will be” (emphasis added).  

The ACAS guidance, which used to say “when planning to return to the workplace, employers must consult with staff and employee representatives” now says “Employers should ‘consult’ with staff (ask for and consider their views to try and reach an agreement) about returning to work” (emphasis added).  

The Health and Safety Executive (HSE) guidance, Talking with your workers about working safely during the COVID-19 outbreak, states: 

“In a small business, you might choose to consult your workers directly. Larger businesses may consult through a health and safety representative, chosen by your workers or selected by a trade union” (emphasis added).  

Consultation: the legislation 

Regulation 4 of the Health and Safety (Consultation with Employees) Regulations 1996 (HS(CE)R 1996) applies where the employer does not recognise a trade union. It states that employers can choose to consult with their employees directly or with elected representatives. There is no absolute requirement to consult “representatives of employee safety”. 

There is clearly a desire from the government to encourage meaningful consultation and this is probably driven by two main issues. The first is that this is an issue facing the entirety of the UK; every sector, every business, every worker. The second is the statutory protections afforded to workers who are fearful of a return to work, or are otherwise unable or unwilling to return to work without reasonable assurances around their safety. We are likely to see employment-related litigation on health and safety related dismissals and detriments in unprecedented volume. 

Unlike the provisions governing collective consultation in the context of a proposed redundancy or TUPE transfer, where consultation is required to take place with recognised or elected representatives, this is not the case with health and safety consultation legislation (despite the wording of the guidance and recommendations of the government and other relevant bodies).  

Why does it matter?  

As a general principle, for consultation to be meaningful, the parties have to engage. It is far more challenging to engage a workforce of hundreds or thousands than it is to engage with a handful of representatives. Consulting directly with many employees has logistical challenges and so it risks becoming a tick-box exercise rather than a two-way discussion. The danger is that consulting directly with employees is more reactive than proactive, inviting comments perhaps over email rather than explaining and challenging a particular measure or safety concern. Consultation is therefore much more likely to be diluted, perhaps ignored by many who see it as not something with which they should proactively engage. 

Representatives often feel more empowered to speak up and are able to provide objectivity to another worker’s concern, without being distracted or dissuaded by emotion or fear. Similarly, opening up about concerns to a representative who is fighting your corner is far easier than challenging your employer directly about your concerns. 

The primary aim of collective consultation is to try to arrive at an agreement. Consultation with individuals is practically less likely to enable a consensus decision. In real terms, consultation with the workforce as a group of individuals typically means informing them of the measures that are proposed to be implemented and inviting comment. A reactive form of consultation. This could make for a higher risk workplace with a confused, fearful group of workers who may in practice be less able to express their concerns. 

Does that mean businesses will avoid collective consultation? 

Collective consultation is often practically far easier for employers. It is a criminal offence not to consult over health and safety and so they can more easily demonstrate compliance through collective consultation, as opposed to making contact with each individual worker (some of whom may be working remotely or at home or on furlough).  

Collective consultation is also favoured by unions and so it is likely that larger businesses particularly will consult collectively through representatives, rather than directly with employees. It is also why the advice from the government, ACAS and the HSE steers employers to consult collectively because it is objectively preferable. 

However, as well-intentioned and persuasive as the guidance may be to encourage consultation through representatives, it is not determinative in legal action seeking to enforce workers’ rights. It may mean that where collective consultation is not delivering the agreement sought by an employer, they may choose to stop consulting collectively and do so directly with employees instead. The only limitation on a business seeking to do so is that they must inform the representatives that this is what they are doing (regulation 4(4), HS(CE)R 1996).  

Summary 

A safe return to work has never been so important to get right. Further restrictions imposed by the government could be catastrophic for a business and for the national economy. The CJRS enables businesses to take their time to properly assess the risks, consult with their employees and unions, and implement the appropriate measures. This may be by having test runs with small numbers of workers.  

The risk to businesses of rushing their staff back to work without the right safeguarding could have fatal consequences for both the financial health of the business and, more importantly, the physical and mental health of their workers. For these reasons alone, it is vitally important for employers to engage their workforces in planning and implementing the changes necessary to keep them safe. Collective compliance is critical, even if collective consultation is not. 

REUTERS |
June 2, 2020

Guidance on the Coronavirus Job Retention Scheme: what is its legal effect?

It seems that every week since the end of March has been marked by a further update to the government’s guidance regarding the Coronavirus Job Retention Scheme (CJRS). The scheme was announced on 20 March 2020 and the first guidance as to how it would operate published on 26 March 2020.

Yet it was a further two and a half weeks later, on 15 April 2020, that the CJRS was placed on a legislative footing, when the Chancellor issued the Coronavirus Act 2020 Functions of Her Majesty’s Revenue and Customs (Coronavirus Job Retention Scheme) Direction (Treasury Direction).

Guidance before legislation

Employers acting before 15 April 2020 (as many were required to do) had to decide what to do on the basis of the government guidance, rather than the legislation itself. They were not alone. In both Re Carluccio’s Ltd (in administration) [2020] EWHC 886 (Ch) and Debenhams Retail Ltd (in administration) [2020] EWHC 921 (Ch), the High Court was asked to determine the effect of administrators’ actions taken under the scheme before the Treasury Direction came into force.

The government has continued with its initial approach of issuing guidance before legislation. Although a further Treasury Direction was issued on 20 May 2020, modifying the CJRS to reflect some of the changes announced before that date, it did not incorporate some of the most fundamental changes to the scheme which had already been announced. The second Treasury Direction, for example, only extended the CJRS to 30 June 2020, despite the Chancellor having announced on 12 May 2020 that the CJRS would remain open until the end of October. Employers therefore must continue to make decisions and plan for the future on the basis of the government’s guidance alone, without knowing how new policies will be captured in statute.

Those advising employers may find themselves caught between the ever-changing guidance and apparently inconsistent wording in the Treasury Directions. How might the courts, if called on to determine that dilemma, resolve this conflict?

Status of the guidance

The starting point is, as many commentators have noted, the Treasury Directions are the delegated legislation which form the legal basis of the CJRS. The Treasury Directions themselves constitute the legal basis of the CJRS. However, that does not mean that the guidance is of no legal effect. It is likely to have some effect in the way that the Treasury Directions are interpreted.

Ordinarily, guidance issued by government departments as to the operation of legislation which falls under their purview is given little notice by the courts. The courts are clear that their role is to apply legislation, not the executive’s interpretation of that legislation.

Guidance as an aid to statutory interpretation

However, guidance published by government departments is admissible as an aid to that interpretative exercise. In Ellis v Bristol City Council [2007] 1 WLR 1407, at paragraph 27, Lloyd Jones J (as he then was) stated the general rule as follows:

“It is, of course, for the courts and not the executive to interpret legislation. However, in general, official statements by government departments administering an Act, or by any other authority concerned with an Act, may be taken into account as persuasive authority on the legal meaning of its provisions.”

Even if admitted as an external aid to interpretation, government guidance is unlikely to be given any more weight than any other text. It has no special status. The court will respect the view of a government department tasked with implementing legislation, but only insofar as the cogency of the material requires. If the guidance is wrong, the court will not shy from saying so.

Guidance on the CJRS, however, has not been given in normal circumstances. It was published well in advance of the first Treasury Direction, with the clear intention that employers act on the basis of the guidance by placing employees on furlough.

It may be, therefore, that the government guidance is given much greater weight than normal in interpreting the Treasury Directions. Given the exceptional nature of the CJRS, the crisis which it was created to address and the fact that the guidance was published before the first Treasury Direction, it may be better viewed as part of the enacting history of the scheme, as opposed to departmental guidance interpreting existing legislation.

Material which forms part of the enacting history of legislation can, for example, be admitted as evidence of the mischief at which legislation was aimed. In Fothergill v Monarch Airlines Ltd [1981] AC 251, Lord Diplock noted that a report of “some official commission or committee … may be looked at by the court for the limited purpose of identifying the ‘mischief’ that the Act was intended to remedy, and for such assistance as is derivable from this knowledge in giving the right purposive construction to the Act.”

In these circumstances, the courts take notice of the material as evidence of the “mischief” that the legislation aims to address, which the courts then apply in the course of an ordinary, purposive construction of the statute in question.

Such an approach may be attractive given the exceptional purpose of the CJRS. The mischief at which the legislation is aimed is complex and may be difficult to discern from the Treasury Directions themselves, and the scheme is therefore potentially open to abuse. This is reflected in the Treasury Directions, which contains a general prohibition against claims which are “abusive or … otherwise contrary to the exceptional purpose of CJRS” (paragraph 2.5).

As the CJRS is again extended until the end of October, there are likely to be fundamental changes to the operation of the scheme to allow furloughed employees to return to work part-time. Further complications, and the rapid timescale in which they must be implemented, may give rise to more instances of divergence between the guidance and the Treasury Directions. However, where the language of these documents varies, we may see the courts go to great lengths to find an interpretation which brings the two together.

REUTERS |
May 20, 2020

Changing status: employees of law “firms”

There is an old saying that the cobbler’s children have no shoes. The cobbler has been so busy looking after their customers that they have forgotten to shoe their own family. So it can sometimes be with lawyers; we are so busy dealing with our clients‘ affairs that we overlook the need to ensure that our own businesses are run in accordance with the advice that we give to our clients.  

This short article highlights certain employment law issues that may arise in solicitors’ practices. In particular, in light of the frequent changes in recent years in the structure of such practices from traditional partnerships to limited liability partnerships (LLPs) to limited companies. 

According to data from the Solicitors Regulation Authority, of a total of 10,383 “firms”, only 15.9% were traditional partnerships, with 22.5% set up as LLPs. Many practices are now incorporated. The employment rights and obligations of senior persons within practices will vary depending on their status; they may be employees, directors, members or self-employed partners.  

Traditionally, solicitors’ firms were structured as partnerships governed by the terms of the partnership agreement and the Partnership Act 1890. A partner in a traditional partnership could not be an employee of the firm. A traditional firm is not a separate legal entity so a partner could not be an employee of the firm as the partner is, with the other partners, the firm. A partner could not therefore bring a claim for unfair dismissal. To protect the goodwill of the firm and its legitimate business interests, a well-drafted partnership agreement should have restrictive covenants. Generally, the courts have been more generous towards enforcing partnership agreement restrictive covenants as they are entered into by the joint owners of the business rather than by employees of a business.  

Arguments over employee status can arise in relation to traditional firms when considering whether a salaried or fixed share partner is a partner within the meaning of the Partnership Act 1890. The fact that the person may be held out to the public as a partner is not determinative of the issue so far as that individual‘s employment status vis a vis the other partners is concerned. Whether the salaried partner is a partner in the true sense will depend on the particular facts including the intention of the parties (see Stekel v Ellice [1973] 1 W.L.R. 191). However, the traditional position remains that a person cannot be both partner and an employee, see Reinhard v Ondra [2015] EWHC 26 (Ch), [42]; Altus Group v Baker Tilly [2015] EWHC 12 (Ch), [161]-[163]. 

LLPs were introduced in 2000 and immediately became popular with solicitors’ firms. The Limited Liability Partnerships Act 2000 (LLP Act 2000) and the Limited Liability Partnerships Regulations 2001 contain the most important statutory provisions concerning LLPs. However, again it will be the LLP agreement that will have to contain any restrictive covenants to limit post departure poaching or competition.  

While an LLP has a separate legal personality, a member of an LLP will not be an employee (section 4(4) of the LLP Act 2000, see below) but members can be workers within the meaning of section 230(3)(b) of the Employment Rights Act 1996 (see Supreme Court decision in Bates van Winkelhof v Clyde & Co LLP [2014] 1 W.L.R. 2047). While a member of an LLP will be unable to claim unfair dismissal, there are numerous rights that a member may enjoy as a worker, such as paid annual leave, whistleblowing protection, and the right to be accompanied to a disciplinary hearing. Furthermore, sections 44 to 46 Equality Act 2010 give partners in a traditional firm and members of an LLP, protection from discrimination regarding protected characteristics.  

Section 4(4) of the LLP Act 2000 provides: 

“A member of a limited liability partnership shall not be regarded for any purpose as employed by the limited liability partnership unless, if he and the other members were partners in a partnership, he would be regarded for that purpose as employed by the partnership.” 

In effect, the position remains as it was in a traditional partnership; if the person would not have been an employee in a traditional firm they will not be regarded as an employee of the LLP.  

Where the firm has incorporated, a director of the company, even if the director is a controlling shareholder, may also be an employee of the company under a contract of employment (see Secretary of State for Business, Enterprise and Regulatory Reform v Neufeld [2009] EWCA Civ 280). A director may therefore have all the rights of and as an employee. 

Why does any of this matter?  

First, the status of people who work in a solicitor’s practice will be very relevant to that person‘s rights if things go wrong and they are terminated. Their status will affect what rights they have and what possible claims the practice may face. If a practice moves from a traditional partnership to an LLP and then to a limited company, the director, who may now be an employee, will not have sufficient continuity of employment to bring a claim for unfair dismissal unless they have been in that position as director or employee for two years because periods when they were a partner and member but not an employee, will not count.  

Second, care must be taken to ensure that any restrictive covenants actually apply to the individual concerned.  

Third, firms must review their contracts of employment and partnership agreements whenever the status of the firm changes to ensure that the necessary restrictive covenants apply to the new form of the business.  

REUTERS | Corbis
April 23, 2020

Will workplace reintegration be more complex than the lockdown?

It is fair to say that the last few weeks have been challenging; for the purposes of this blog I am talking only from a workforce planning perspective, recognising that, for many, the challenges have been far greater professionally and personally. We have all had to quickly get acquainted with very new concepts (who had heard of the word “furlough”  before the beginning of March?), deal with constant and often inconsistent Government guidance when advising on how to manage the workforce during this period, and support businesses who are having to make very difficult decisions at pace. Of course, all this has been necessary while grappling with remote working, and supporting employees who may be struggling with anxiety, loneliness and job insecurities. However, we have adapted and have now entered a relatively calmer phase as workforce plans have been implemented (at least for the short term). However, we may be in the eye of the storm and, as we consider how things will be in the “new normal” when we start returning to the workplace, it is clear that this reintegration is going to be just as challenging, if not more so, than the lockdown. 

Five key challenges for employers to consider 

We have talked to clients about what they consider the main challenges will be, and have set out below our thoughts: 

1. Managing the return of employees

How will the return of employees be handled? Obviously, much will depend on the wider approach the government takes to reintegration, but we doubt that there will be a wholescale return. It is more likely that only those whose roles require them to be in the office/workplace will return first, with others who can work remotely being asked to continue to do so. Deciding which employees are essential to restart on-site activities will be difficult, given that some employees may be very keen to return, and others less so. Some companies are considering split teams whereby some employees attend the workplace for one week, and the second team attend for the second week, as was trialled when the pandemic first impacted the UK. Others are looking at mixing remote working with limited time in the office. 

2. Health and safety 

Linked to the above, what measures does an employer need to put in place to ensure the safety of those who return? Social distancing is likely to be around for some time yet, but this will be easier to implement in some industries and in some roles. Many employers are considering securing immunity/antibody testing kits so that employees can be tested for Covid-19 before they return to the workplace. However, this raises a number of issues: can an employer compel an employee to submit to testing, how do you manage the privacy and data protection issues involved in processing employee’s health data (special category data for the purposes of the GDPR), how will the testing be done, and who will conduct the testing. 

It is useful to monitor what our European neighbours are doing in this regard, with certain jurisdictions already publishing guidance on the ability to test employees. For example, in Spain and Italy, the governments are against such testing in the private sector, not least because it is considered that test kits should be reserved for use by those in public services such as healthcare. An employer who stockpiles test kits may well find themselves the target of negative PR. 

In Germany, however, the German Federal Ministry of Labour and Social Affairs last week issued a new Covid-19 occupational safety standard, setting out a comprehensive set of standards that companies should adhere to pursuant to which temperature screening may well be possible, and it will be interesting to see the approach taken by the UK Government in this respect. Aside from testing, the need for clear instructions on increased hygiene requirements and how to ensure appropriate sanitation is in place will be important – things we took for granted like shared office space and eating in the workplace will be a challenge. 

3. Mental Health 

Mental health has been a real issue for many during the lockdown, and for some the prospect of returning to work may be even more worrying than being at home dealing with feelings of loneliness and anxiety. Some employees may be very worried about getting back onto public transport, being back in close proximity with colleagues or just having to resume a “normal” working day. An employer who wants reintegration to be as smooth as possible will be very much aware of these issues, will have a clear communication plan in place to allay concerns by setting out what they plan to do to help employees, and will also have a comprehensive support programme to help those who are struggling to deal with the return to the workplace. Employees may have suffered bereavements during this period, and may need additional support to help them manage their grief, particularly in situations where they were unable to be with loved ones during their illness or to attend their funerals. 

4. Salary 

Businesses who have introduced measures such as salary reductions or deferrals as a result of the economic impact of the pandemic will need to decide if these measures remain necessary and, if so, for how long. Employees who may have reluctantly agreed to these arrangements while under lockdown, may be more likely to challenge these once they are asked to return to a more normal working pattern. Therefore, employers will need to justify any decisions to prolong them or to put in place new measures, ensuring employees are properly informed (and, where necessary, consulted with) to ensure there is a clear understanding of the rationale. 

5. Flexibility 

The lockdown could herald the start for some, and the continuation for others, of a greater acceptance of remote working, taking us firmly into a new era of flexibility. It is clear that, through the use of technology, there is a significant amount that can be done virtually rather than face-to-face. However, some clients we have spoken to worry that there may actually be a backlash against remote working as employees rush to reconnect with each other, and perhaps fear that they need to be physically present in the workplace to justify their role and avoid redundancy. Will managers feel employees have “had enough time sitting at home” and now need to “step up to the plate” again? How will this impact those who need flexibility, particularly those with carer responsibilities (which may well have increased in light of the pandemic)? It is important that managers understand the risks of such claims being made and how they should be dealt with under internal procedures, not least because they may well constitute protected disclosures  for whistleblowing purposes. 

There is a lot to look forward to as we work towards reintegration, but there is also much to think about in order to manage this process effectively, responsibly and supportively.  

REUTERS | larry downing
April 9, 2020

Is the state’s failure to recognise a person’s non-gendered identity an unlawful interference with the right to respect for private life?

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 government‘s restrictions in this instance are likely to be justified and proportionate in the circumstances. 

There are, however, cases where the question of whether the state‘s 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 appellant‘s non-gendered identity, but that the state did not have a positive obligation to allow “X“ as a passport gender marker. Although the appellant‘s appeal to the Court of Appeal was unsuccessful on this occasion, Lady Justice King made the point that the time will come when the state‘s 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 Court‘s 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 appellant‘s 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 UK‘s 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 Court‘s 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 Court‘s 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 |
March 12, 2020

Coronavirus (COVID-19): key employment law issues

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.

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