Author: Ilinca Mardarescu

Sadly, most employers will find the time comes when one of their employee may contract coronavirus. In such a situation, is it best to Furlough or pay the employee SSP?

If your employee is on sick leave or indeed self-isolating as a result of Coronavirus, they’ll be able to get SSP, (subject to the usual eligibility conditions applying). The Coronavirus Job Retention Scheme Furlough) is not intended for short-term absences from work due to sickness. One of the main reasons for this is that the scheme places employees on Furlough in 3 week periods. Someone who is self-isolating may only need to be away from work for 14 days.

Additionally, the rules around SSP have been changed which mean if you are sick or self-isolating due to Covid-19, employers can pay employees from day 1 (rather than from the usual day 4).

Short term illness/self-isolation should not be a consideration in deciding whether to furlough an employee. If, however, you want to furlough employees for business reasons and they are currently off sick, you can do so. In these cases, the employee should no longer receive sick pay and would be classified as a furloughed employee.

You can also furlough employees who are being shielded or off on long-term sick leave. It is up to an employer to decide whether to furlough these employees.

Employers should note of course that they can claim back from both the Coronavirus Job Retention Scheme and the SSP rebate scheme for the same employee but not both for the same period of time. When an employee is on furlough, you can only reclaim expenditure through the Coronavirus Job Retention Scheme, and not the SSP rebate scheme. If a non-furloughed employee becomes ill, needs to self-isolate or be shielded, then they might qualify for the SSP rebate scheme, enabling the employer to claim up to two weeks of SSP per employee.

Which to choose therefore will depend on how long you envisage the employee being away for, but SSP should generally speaking be the primary (and perhaps more apt) choice of the two.

For any assistance with the practical working of these or any employment-related questions, please contact our Head of Employment, Ilinca Mardarescu 

Regular updates and new details on the Job Retention Scheme (aka Furlough) are published on an almost daily basis by HMRC currently.  

Here are some of the latest surprising, and not so surprising, developments:

1. The good news is that the HMRC portal is now working and in the testing stage.  HMRC have stated this will be open and running properly on 20th April. They have also clarified that they expect the first payments (once they have been processed) to be paid by the end of this month.
2. It has been clarified that directors can be Furloughed, and would be allowed to continue with any statutory duties, as long as they are not carrying out normal work for the Company.
3. Clarification has similarly been given as to what apprentices on Furlough can do.  Essentially, they are allowed to continue training/learning but cannot provide a service or generate revenue for the company they work for.
4. The situation regarding TUPE’d employees has been clarified.  Essentially, any employees who TUPE’d across to a new employer after 28th February will be eligible to be Furloughed.  Previously, HMRC had stated this would not be the case so this is no doubt a surprising, and welcome, clarification for some.
5. Lastly, a change to previously published guidance is that HMRC has clarified that employers can reclaim 80% of fees.  No detailed guidance has been published as to what the term fees encompasses but as HMRC had previously stated employers would not be able to reclaim fees, the change is no doubt welcome in any event.

If you’re keen to implement a furlough, or have further questions if you have been placed on furlough. Please don’t hesitate to contact our Head of Employment Law, Ilinca Mardarescu.

It wasn’t long ago that no-one had heard of the term “to be Furloughed”.  Now, it is one of the most common terms being used in employment law terms.

The term (which derives from the Dutch word Verlof), means to be granted a leave of absence and until recently was more commonly used for military personnel or services.  However, in these unprecedented times the Government have introduced the Coronavirus Job Retention Scheme (also known as Furlough Leave) to assist business with their staffing costs in order to prevent redundancies and job losses.  

In essence, HMRC will be paying a grant to employers for up to 80% of an employees’ wages (up to a £2,500 limit) where that employee has been asked to stay at home and not undertake any work.   

Guidance is being published on an almost daily basis as to how this will work in practice but recent guidance has confirmed some interesting (and welcome) new information in relation to voluntary work and second jobs.

Interestingly, the recent HMRC guidance has clarified that employees can start a new job when on Furlough.  This means that potentially an employee could end up earning 80% of their old salary under Furlough and then a further 100% from a new job which they take on.  It should be noted that this must still be allowed under the original contract of employment however so employees will need to check this (or seek their employer’s consent).  With the weather turning and farmers up and down the country desperately seeking help with their crops, now would be a good time for those on Furlough Leave to spend a month or two helping the nation whilst also earing themselves a little extra money.

Similarly, an employee on Furlough leave is able to volunteer.  Indeed, many in these challenging times have already started doing just this and it is heart-warming to see communities coming together and helping those more vulnerable.

There are few opportunities that many of us will have to make a real, tangible difference and impact in quite this way.  Most of us, in more normal times, need to work to earn a living. The Government’s scheme however may have a surprising outcome by allowing anyone on Furlough leave to spend a considerable amount of time volunteering and helping where it is needed most.  Social distancing is crucial right now but that doesn’t mean we can’t come together in different ways – for the good of the country.  

If you’re keen to implement a furlough, or have further questions if you have been placed on furlough. Please don’t hesitate to contact our Head of Employment Law, Ilinca Mardarescu.

Under the Equality Act 2010, there are a number of “protected characteristics” which form the basis of any discrimination claims.  Many are familiar with discrimination being unlawful on the grounds of race, sex or disability but in fact there are nine protected characteristics with religion or belief being one of them.

Until now, veganism was not considered a “belief” but Norwich Tribunal has now ruled that ethical veganism qualifies.  Judge Robin Postle stated that the belief is worthy of respect in a democratic society and is not incompatible with human dignity nor does it conflict with the fundamental rights of others.

This is an Employment Tribunal ruling only at this stage and therefore is not binding – and could still be appealed. However, the decision has (quite rightly) been described as “potentially significant” by the solicitors acting for Mr Casamitjana.

Mr. Casmitjana brought this case to court following claims that he was sacked by the League Against Cruel Sports, an Animal Welfare charity. And, it was because of his ethical veganism that he was fired, following a confrontation with the charity who were investing pension funds into firms involved in animal testing.

What is ‘Ethical Veganism?’

The term ethical veganism pertains to more than just a diet of no animal products. An ethical vegan believes in excluding all forms of animal exploitation from their lifestyle, meaning things like clothing, make-up, toiletries and avoiding companies with a history of animal testing.

So what does this ruling mean?

As matters stand, Ethical Veganism is now protected as a philosophical belief under the Equality Act 2010. This means that employers may be required to respect ethical veganism and make sure there is no discrimination against the ethical vegan’s beliefs.  How far this will go is yet to be seen.  Employers will be required to watch out for perceived ‘banter’ with ethical vegans on their beliefs or, the use of unethical products within the business.  But this could prove problematic in the catering business for instance.    No doubt this ruling will shape and change the HR landscape within businesses in years to come.

While the year wraps up for many people it can sometimes be a stressful, busy and worrisome time for employers. Christmas can always be a challenging time when it comes to leave and employees, with many staff expecting time off over the Christmas break to spend time with love ones and family. But, with some businesses potentially taking a hit in productivity and profits if their business loses the majority or all of their manpower over the festive season, it’s inevitable the question can sometimes rise ‘How should I handle staff wanting time off over Christmas?’

Restrict Holiday or telling Employees to take it.

As an employer you are entitled to restrict when an employee takes their holiday leave if it adversely affects the business, for instance in busy periods. It is also the employers prerogative to tell staff to take leave at particular times of the year should they deem fit.

If, as an employer, you want to refuse leave to an employee then it is generally accepted that you give them as much notice as possible; the minimum being as much as the leave amount requested. But remember, legally and in the interest of overall engagement of your employees it is recommended that you act fairly.

Everyone wants time off but you need people over the busy period.

Many businesses unavoidably have a busy time over Christmas, especially those in the retail sector. Firstly, it is recommended you state in your employee contract that Christmas holiday is restricted and that the employees must give at-least twice the leave period notice to ask for holiday (for instance 4 weeks before for a 2 week holiday).

Things like rotas or first-come-first-serve could be your best option. It’s important to establish an unbiased and fair system for those wanting to book holiday. Using software and good processes can help alleviate the stress of juggling many leave requests.

Ultimately it comes down to employee expectations and clarity, if you’re upfront about your situation as early as possible it will help employees come to terms with the decision, make arrangements and help alleviate a potential hit to moral.

Need to change your mind on granted holiday?

This is technically possible for an employer to do, you have the right to retract granted holiday for business critical emergencies. But, keep in mind this is firstly highly inadvisable for an employees’ contentment point of view, as well as incurring the danger of needing to pay out compensation on travel or booked holiday arrangements made by the said employee.

Tips to handle Christmas Holiday correctly:

• Try to create a yearly rota if people are required to be in over the holiday. Or, offer the day off to some employees and swap it over the next year.
• Actively encourage your employees to put in their holiday request as far in advance as possible.
• Implement easy to use software or processes for submitting holiday for staff.
• Seek a professional to help write out a clear and well-written employment contract and/or holiday leave policy, to help avoid contention and keep expectations clear.

If you’re worried about the holiday and your preparedness for it in the coming month, then don’t hesitate to call our employee law experts who can not only help you refresh your employment contracts, but also discuss potential legal issues with employees.

Channel 4 is among many big employers to now introduce a ‘menopause policy’ for their employees. This is backed by MP’s who have recently called for policies such as this to become common-place.  And indeed the figures speak for themselves – CIPD research claims that women over the age of 50 are one of the fastest growing demographic in the UK workforce and that 59% of women claim to have experienced menopausal symptoms which have had a negative impact at work.  It seems clear that it’s about time companies begin to think about implementing a policy to help their affected staff.

But, what is a Menopause policy exactly?

A menopause policy aims to support employees who are experiencing menopausal symptoms, which can include hot flushes, anxiety and fatigue. The policy can help outline ways in which women can ease their symptoms helping improve their engagement, well-being and opening the discussion what can sometimes be seen as a taboo subject.

With big companies like Channel 4, Google and CIPD implementing and bringing the idea into the workplace consciousness, it is opening up critical conversations which are essential for helping and support women with their transition through the menopause.

Channel 4’s Policy for example includes things like flexible working, paid leave and adjusted working environments such as quiet and cool work spaces. These insights and actions come from regular workplace assessments to make sure the environment is just right for women dealing with menopausal symptoms.

A call to bring a Menopause Policy into the Law

With some MP’s calling for more of an understanding and widespread implementation of a Menopause Policy, like MP Carloyn Harris saying: “You wouldn’t dream of having a workplace where people weren’t entitled to certain things because they were pregnant, and it’s exactly the same for women with the menopause. I firmly believe there should be legislation to make sure every workplace has a menopause policy, just like they have a maternity policy.”

And, the CIPD putting in place a manifesto which puts to the Government statements like; “The Government should ensure that menopause is referenced as a priority issue in its public policy agenda on work, diversity and inclusion”, “The Government should nominate a Menopause Ambassador to represent the interests of women experiencing menopause transition across Government departments” and “The Government should support an employer-led campaign to raise awareness of the menopause as a workplace issue” It’s clear that this important issue is coming to light and should spur the Government to begin making changes.

Currently, the only potential claims would be for either sex discrimination or disability discrimination where the symptoms were severe enough.  This leaves women going through the menopause vulnerable at a time when they need support most.

Implementing your own policy

If you own a business and employ workers over the age of 50 who will soon be experiencing symptoms of the menopause it’s important to provide some kind of policy and/or guideline to help them with the inevitable discomforts it will cause them.

Things you can include in the policy:

• Flexible Working
• Paid Leave
• Environmental Changes like cool, private rooms.
• Implementing a ‘Menopause Champion’
• Workplace Assessments
• Mental Health Support

If you’re keen to implement a policy like this or need a complete overhaul of your company polices, we can assist. Please don’t hesitate to contact our Head of Employment Law, Ilinca Mardarescu.

Tillman v Egon Zehnder Ltd is the first employee competition case to be heard by the Supreme Court in over 100 years, establishing clear guidelines for the application of the severance principle in employment contracts and bringing the issue of restrictive covenants in modern business to the forefront.

The case’s background

Ms Tillman’s contract of employment with executive recruitment firm Egon Zehnder (EZ UK) included a non-compete clause which stipulated that she would not “engage or be concerned or interested in” any business competing with EZ UK.

EZ UK was granted an injunction to enforce the non-compete clause after Ms Tillman made clear her intentions to start working for a competitor.  However, the Court of Appeal later considered that the words “interested in” would prohibit a minor shareholding, which they found unreasonable, so held the covenant to be void. 

The Supreme Court’s Involvement

EZ UK appealed to the Supreme Court raising three issues, namely:

1. whether a prohibition on holding shares falls outside of the restraint of trade doctrine;
2. whether the words ‘interested in’ prohibited minority shareholding if properly construed; and
3. whether the doctrine of severance was applied correctly.

The court concluded that:

1. falls within the doctrine (but only on the facts of this case due to Ms Tillman’s employment as a top executive);
2. Upon the application of the validity principle, the court determined that the Appellant was unable to provide a realistic alternative construction and on that basis considered the word “interested” to be an unreasonable restraint of trade; and
3. Despite agreeing with the Court of Appeal’s decision to set aside the injunction, the Supreme Court considered the principle of severance in relation to the words “interested in” and held it would be possible to apply it appropriately in this situation. 

Judgment

The case generated a review of what is known as the ‘Blue Pencil Rule’.  The Court clarified that the removal of wording or a provision within a clause must not generate any major change in the overall impact.  It further ruled that it was the employer’s responsibility to establish this. The Court subsequently determined that the words “or interested in” could be removed from the clause without disrupting its general restraints.

Impact

The case is significant in revising the severance principle and establishing the criteria for its future application. This will likely prove valuable in enforcing future post-termination restrictions.  It also gives clear guidance to employers as to how they should draft non-compete clauses in contracts. The Court further considered the historical significance of the restraint of trade doctrine as one of the earliest products of common law, but it also affirmed the wider principle of allowing severance when it does not generate major change in the overall effect of the restraints.  However, the Supreme Court declined to decide on “the outer boundaries of the doctrine” suggesting this may be an area for further development in future cases.

For now, employers are likely to feel reassured by the principles set out in Tillman v Egon Zehnder – although as always, great care should be taken when drafting such clauses.

For advice on how best to protect your business interests, please contact our Head of Employment, Ilinca Mardarescu on 01753 486 777.