Employment and Immigration Law Update – Quick fire June 2020

Test and Trace, the Job Retention Scheme, Acas guidance on equal pay and the latest ICO guidance are all featured in this month’s Quickfire.

Test and Trace: workplace guidance

The Department of Health and Social Care has published new workplace guidance to assist employers in understanding how the NHS Test and Trace service works and what they should do to support it in practice.

The guidance suggests that employers should “play their part” by making workplaces as safe as possible, and by encouraging workers to heed any notifications to self-isolate as well as supporting them when in isolation. It recommends that employers should maintain communication with workers in self-isolation and provide support, which includes allowing them to work from home if it is practicable for them to do so. This might mean providing them with alternative work during the period of self isolation. If they cannot work from home, employees are entitled to be paid statutory sick pay during self-isolation or should be given the option to use holiday entitlement if they prefer.

Workers who develop symptoms and order a test will be encouraged to alert those with whom they have been in contact over the previous 48 hours; they may ask their employer to alert co-workers. 
If there is more than one case of COVID-19 associated with a workplace, employers should report the outbreak to their local health protection team, who if necessary will undertake a risk assessment and provide public health advice.

Coronavirus Job Retention Scheme updated guidance

The Government has updated its guidance on the CJRS, to reflect the changes in the scheme starting with effect from 1 July 2020 until the closure of the scheme on 31 October 2020.

From 1 July, employers will only be able to place those who have previously had a period of furlough leave on a further period of leave, although the minimum period of three weeks will no longer apply. Employers will be able to furlough their employees on a part time basis, while allowing them to work (and paying them) part time. Starting from 1 August, employers will be required to make a financial contribution to the cost of the CJRS.

For a more detailed overview of the changes to the CJRS, please see our article.

Acas guidance on equal pay

Acas has published new guidance on equal pay, to mark the 50th anniversary of equal pay legislation, aimed at assisting employers and their staff to understand the complex law in this area. Unlike the EHRC Code of Practice, the Acas guidance has no statutory force but will be useful for employers to understand how the equal pay provisions work and includes suggestions for how to minimise the risk of claims arising.

Giving evidence not ‘work’

Under the rules of the Coronavirus Job Retention Scheme (CJRS), employees who are on a period of furlough are not permitted to undertake any work for the employer (subject to the new rules that apply from 1 July for those who are furloughed part time). The Government guidance states that employees must not generate revenue for or provide services to their employer during a period of furlough. They can undertake voluntary work during furlough, but not for their employer.

In a recent personal injury case in the Nottingham County Court, three of the employer’s witnesses were furloughed. The judge in the case refused to vacate the hearing on the grounds that the witnesses were furloughed, finding that an employee’s attendance at court to give evidence on their employer’s behalf is not ‘work’ in the context of the CJRS. Participating as a witness in the justice system (which would include employment tribunals) was held not to be a breach of the requirements of the CJRS.

This decision will not be binding on HMRC, but it seems unlikely that HMRC will consider an employer has breached the terms of the CJRS in these circumstances.  Acas guidance also states that a furloughed employee can take part in a disciplinary or grievance investigation or hearing, but whether this amounts to ‘work’ for the purposes of HMRC has not yet been tested.

New ICO guidance

The Information Commissioner’s Office (ICO) has published further guidance on data protection in relation to the COVID-19 pandemic.

The new guidance relates to the recovery phase of the pandemic, as many businesses are starting to reopen. It covers guidance on the ICO’s regulatory approach during the pandemic, testing of staff, using surveillance methods to monitor staff and individual rights under data protection legislation. It also includes six data protection steps for organisations, setting out the key principles organisations need to consider in relation to the use of personal information.

These articles are from the June 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.