The Coronavirus Job Retention Scheme Guidance has now been updated with an important change in relation to claiming for notice pay:-
Under the updated rules, an employer cannot claim for any days on or after 1 December 2020 during which the employee was serving a contractual or statutory notice period for the employer (this includes people serving notice following a resignation).
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Following Chancellor Rishi Sunak’s announcement on 5th of November that the CJRS will be extended until 31st March 2021, HMRC has now published updated guidance on the extended Coronavirus Job Retention Scheme (CJRS).
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For a dismissal to be fair, an employer needs to have a potentially fair reason to dismiss – such as misconduct, redundancy or ‘some other substantial reason’ (SOSR) – and the decision to dismiss must be within the range of reasonable responses. In cases where an employer’s reputation may be at risk, conduct and SOSR can overlap. The Employment Appeal Tribunal has looked at this issue recently in K v L.
A teacher was charged with possessing indecent images of children, but he denied being responsible for them. He was suspended from work pending investigation. The Procurator Fiscal (the Scottish equivalent of the CPS) decided not to prosecute. The police evidence provided to the employer was redacted beyond use, so it wasn’t given to the disciplining officer. The employer concluded that there wasn’t enough evidence to show the employee was responsible for downloading the images. However, he was dismissed for misconduct and the potential risk he posed to children. The dismissal letter also cited the risk of reputational damage which hadn’t been part of the hearing.
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In order to qualify as a disability under the Equality Act 2010, an impairment must have a substantial and long-term adverse effect on an individual’s ability to do day to day activities. In order to be long term, a substantial adverse effect must have lasted, or be likely to last, at least 12 months, or be likely to recur.
A tribunal will look at medical evidence and the employee’s own witness evidence about the effects of their impairment. But they will also look at other evidence, including the employer’s, if that is relevant.
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The current uncertainty around jobs can cause friction between employers and their employees. In such times, many employees call on their trade unions for support. Unions are keen to stamp their mark, not only to protect existing members but to capitalise on an industrial crisis and turn it into a recruitment drive. Section 161 of the Trade Union and Labour Relations Act 1992 allows an employee to claim interim relief if they believe they have been automatically unfairly dismissed due to trade union membership or activities. If an employee can show they are likely to succeed in a claim for unfair dismissal due to trade union activities, then a tribunal will reinstate them pending a full hearing of the case.
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This month the High Court has looked at the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 and their relevance in internal disciplinary proceedings. In Kathryn Hopkins v HMRC, the employee was arrested in connection with various offences, including sexual offences and an offence which took place in a work vehicle. As required by her contract of employment, she told her manager about the arrest. The manager then shared that information with various internal departments, including HR (in relation to pursuing disciplinary proceedings) and the press office (to manage any negative publicity). The employee was suspended pending a disciplinary process for gross misconduct. The employee’s contract of employment included terms involving appropriate behaviour outside of work and conduct which could give rise to queries about honesty and trust.
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The EAT has issued some guidance on written pleadings which will make employers breathe a sigh of relief. All too often, employment tribunal claims run to several pages, documenting several years of alleged ill treatment, often without stipulating a single legal claim.
The EAT has provided its wisdom in a case called C v D, where the employee had brought a claim for discrimination which ran to 37 paragraphs over 6 pages.
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Sometimes working relationships just break down and can’t be repaired. The employer may feel that it is left with no alternative but to dismiss an employee who simply cannot work effectively with a manager or key colleagues.
A dismissal on these grounds can fall within the potentially fair category of ‘some other substantial reason’ and the question will then be whether the employer has behaved reasonably.
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Are you worried about your homeworkers kicking back during the pandemic? Shibu Philips, founder of London-based beauty business Transcend, has told the BBC he has been using Hubstaff software in order to monitor what his employees are doing. He says he knows only too well what its like to waste time at work. The software allows him to track his workers’ hours, keystrokes, mouse movements and websites. He can look at screenshots and see how much time workers are taking on tasks. Employees are fully aware of the software and can delete websites visited during breaks.
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Unlike the civil courts, costs (including legal fees) are not usually paid by the losing party in employment tribunal cases. Costs can be awarded by a tribunal if one of the parties has behaved vexatiously, disruptively, abusively or otherwise unreasonably in bringing proceedings or the way they have conducted themselves during those proceedings. A costs order might also be made if a claim is pursued (or defended) despite the claim/defence having no reasonable prospect of success. They are rare, so are big news when they happen, especially when the sums involved are large.
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