Employment and Immigration Update - Quick fire September 2020

25 September 2020

Overpayments under the Coronavirus Job Retention Scheme, revised tribunal rules of procedure and new guidance on COVID-19 testing for employers are all included in this month's Quick Fire round-up.

Coronavirus Job Retention Scheme – HMRC pursuing overpayments

HM Revenue and Customs has started to issue letters to around 27,000 organisations that it believes may have claimed too much under the CJRS. This represents approximately 2% of those claiming.

The letter makes it clear that HMRC understands that mistakes may have been made and states that it “will not seek out innocent errors and small mistakes for compliance action”. This suggests that HMRC will focus its enforcement efforts on those it considers to have deliberately and fraudulently claimed under the scheme, which is good news for employers who had to grapple with the complexities of the scheme and who may have made minor and inadvertent errors in their calculations.

Revised tribunal rules of procedure

According to Ministry of Justice data, a backlog of around 45,000 cases are waiting to be heard at the employment tribunals as at August 2020. This represents an increase of 26% in the backlog since March.

In an attempt to increase capacity in the employment tribunals and to tackle this backlog, the Government has introduced new regulations to make significant amendments to the existing rules of procedure. These changes are due to take effect from 8 October 2020.

The amended rules will make the following changes.

  • Certain non-employment judges will be able to hear employment claims. They are likely to be assigned to the more straightforward rather than complex claims. 
  • Legal officers will be permitted to carry out a range of case management functions, as authorised by the Senior President of Tribunals in a practice direction. This will include decisions such as determining applications for an extension of time for responding to a claim or complying with a case management order, which are currently decided by an employment judge. Parties to a claim will be able to apply within 14 days of a determination by a legal officer for the issue to be reconsidered by an employment judge.
  • Further amendments are designed to facilitate remote hearings, making provision for witness statements to be available for inspection otherwise than during the course of the hearing, when the hearing is conducted by electronic communication. The rule requiring that parties and any member of the public must be able to hear what the tribunal hears and see any witness is amended to “so far as practicable”.
  • Multiple claimants will be permitted to use the same claim form, if they “give rise to common or related issues of fact or law or if it is otherwise reasonable for their claims to be made on the same claim form”. This is a broader provision than the current rule, which applies only if the claims are based on the same set of facts.
  • Certain errors on the claim form, including the wrong Early Conciliation number, will not result in the rejection of that claim form.
  • Notice of a final hearing may be issued following receipt of a claim and before the date for submitting a response, provided the hearing is no sooner than 14 days after that date. This will allow more flexibility for tribunals to list hearings as quickly as possible.
  • Employment judges will be able to issue a default judgment even in cases where a preliminary hearing has taken place (for example, to determine whether the claimant has a disability). No further hearing is required. This will apply to claims where there has been no response submitted or if the claim is not contested.
  • Judgments will be able to be reconsidered by any judge, not just the one who gave the original judgment.
  • Other parties will be notified in writing if a witness order has been made and the name of the person required to attend the hearing.
  • Cases dismissed on withdrawal will no longer be entered on the public register, which means that employers who settle claims will not appear on the publically accessible and searchable database.
  • Under amendments to the Early Conciliation Rules of Procedure, the basic period for Early Conciliation will be increased to six weeks, rather than the existing period of one calendar month (currently subject to an optional extension of two weeks, which will no longer apply). Note, this change will take effect on 1 December 2020.

New guidance on COVID-19 testing for employers

The Department of Health and Social Care (DHSC) has published new guidance for employers and third party providers on COVID-19 testing and contact tracing.

Employers are advised not to use the NHS Test and Trace service for testing non-symptomatic staff due to shortages in availability, but instead to consider private alternatives. The guidance covers the types of testing available and summarises the relevant legal obligations.

Before deciding to test staff, employers should consider the scope of any testing programme, the frequency of testing and how test results will be used, as well as arrangements for those who refuse to be tested.

Employers should issue transparent communications to staff, outlining how the testing programme will operate in practice. They are ‘strongly advised’ to consult with staff or unions before implementing a testing policy. The guidance also reminds employers that they must comply with their data protection obligations and ensure that data is processed lawfully, fairly and transparently and that staff are aware of how their data will be used, shared and kept.

The guidance anticipates that employers might want to introduce their own internal tracing schemes alongside their own testing programme. Employees identified as a contact under an internal tracing system do not have to self-isolate and will not qualify for statutory sick pay (SSP) unless they are contacted by NHS Test and Trace. They should work from home where this is possible, but if not they may still be entitled to receive full pay.

Information on how to communicate test results to staff is included, suggesting that staff should be kept informed of potential or confirmed cases but without naming individuals.

These articles are from the September 2020 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts' Employment Law Team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at September 2020.