Range of Reasonable Responses Newsletter November 2020
One of the things I miss about the pre-covid days is travelling around the country and meeting people. On the other hand I am getting used to broadcasting from my employment law bunker near Cambridge. This week I am 'visiting' North West Employers on Tuesday and the East Midlands Councils on Wednesday. These are sessions for regional HR people working in local government - so we will spend a lot of time talking about the new restrictions on public sector exit payments (see below) and whether they will withstand judicial review. One of my favourite gigs of the year is an annual update for West Midlands Employers. We usually have about 100 people crammed into the council chamber in Sandwell. Obviously this year we need to stay online. That also means that we can spread the content out a bit so that delegates do not have to stare at the same screen for a whole day. Instead the sessions run on 17 and then the 19 November You get a whole day's break in the middle - although refreshments are not provided!
So while I still miss the old days, online delivery does give clients real flexibility in how and when training is delivered.
In the meantime, I'm really enjoying running my own webinars that are open to anyone who books. I am running three in November covering changes in terns and conditions, working from home and 'SOSR' dismissals. Full details on my Eventbrite page.
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New Lockdown
The announcement of a new lockdown - and the extension of the furlough scheme through to December - came just after the Government published 11 different guidance documents on the Job Support Scheme that had been due to come into force the next day. Whether that scheme will now kick in from December - or whether it will have to be pushed back even further depends of course on how long the lockdown lasts.
In the meantime, the position seems to be that the furlough scheme is being wound back to its August rules, which mean that the Government provides a grant covering 80% of wages to a maximum of £2,500 a month with the employer having to cover NIC and pension contributions. At the time of writing it is still not entirely clear who is eligible, with a question mark hanging over new employees who have not previously been furloughed. As ever, we need fresh guidance from the Government and a new Treasury Direction.
Another consequence of lockdown is a renewed emphasis on working at home. The Government is recommending travel to work only when working from home is not possible -as in manufacturing roles or the provision of personal services (where they are permitted to continue). Once again it seems that employers will need to allow homeworking even when that is not their preferred option or where their experience earlier in the year was that work done at home was less effective. Employees must obey reasonable instructions, but an instruction to come into work under the current restrictions is not likely to be reasonable when home working is at all feasible. If the employee refuses then any dismissal is likely to be unfair and the withholding of wages might well be a breach of contract.
I will be amending the programme for my Working From Home webinar on 12 November to reflect the new restrictions - book you place here.
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Exit Payments Omnishambles
The Restriction of Public Sector Exit Payments Regulations 2020 come into force on 4th November. Whether they remain in force will be another matter. Unions seem to be queuing up to seek a judicial review which could result in them being struck down.
There are several different lines of attack that can be taken. For example, because there are no transitional provisions the Regulations make it unlawful for public sector employers to comply with contracts they have lawfully entered into. That might include contractual redundancy schemes or individual exit packages that were negotiated and agreed before the the implementation date. it could be argued that this gives the Regulations a retrospective character that requires more express authorisation from Parliament than is given by the primary legislation on which the Regulations are based.
Probably the best argument that the Regulations are unlawful however is that the Government has irrationally chosen to implement them before the necessary changes can be made to the Local Government Pension Scheme. There is a clear conflict between the Regulations and the employer's obligation under the Scheme to make 'pension strain' payments covering the additional cost of the pension paid to an employee who is made redundant over the age of 55. The Government seems to be of the view that the Regulations have the effect of curtailing an employee's entitlement with the result that they must accept a reduced pension. I explain in this blogpost why that is simply nonsense.
If I were the judge however, I would strike down the Regulations on the grounds that they are incoherent and drafted so badly that it is not possible to discern what a public sector employer can and can't do. They really are a shambles and raise all sorts of unanswered questions. For a detailed discussion of what is in the Regulations and some of the problems with the way they have been drafted you can watch the full recording of the free webinar I gave before we knew the implementation date. If you are a public sector employer and want to discuss your approach to the Regulations and the impact they have on you then do get in touch.
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Supreme Court delays
We have been waiting for the judgement in Royal Mencap Society v Tomlinson-Blake since February. But at the time of writing there is still no decision or any indication of a when a decision will be given. The case concerns sleepover shifts and the minimum wage - and whether time when the employee is asleep on the premises counts as working time. The issues are complex, but dealing with complex issues is what the Supreme Court is designed to do and should not in itself be a reason for the delay. It might not help that Lord Wilson, who was one of the Justices on the panel has retired since the hearing, But judges regularly come back after retirement to deliver outstanding judgments so that shouldn't be a problem. Perhaps he has gone off round Europe in a camper van and no-one can find him.
It might be that there is disagreement among the justices about what the outcome should be and they have spent a lot of time trying to reach a single decision that a clear majority can agree on. This is worrying. We need a clear answer to the question of what counts as working time and if we get a number of different decisions all dealing with the issue individually then whatever the majority result in this particular case, it is unlikely to be helpful in removing the doubt and uncertainty currently affecting thousands of care workers up and down the country.
And if the care workers lose - while we are in a fresh lockdown and they are facing the incredible challenge of keeping residents in care homes safe at great personal cost - then surely the Government will need to step in. If we make an employee stay away from home overnight either in a care home or in a vulnerable person's own house then surely they should be paid properly for that work? If the employee loses in the Supreme Court then there will be no entitlement to be paid for that work at all. Given what care workers have already been through this year, that can't be a position the Government would allow to continue.
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SOSR procedures
While we wait for a landmark decision, the churn of regular employment law cases continues. I thought in this update I would highlight just one where I think the employer got off surprisingly lightly.
The case is Gallacher v Abellio Scotrail and it concerns an employee who was dismissed because her manager believed that their relationship had broken down. There had been disagreements about salary increases, recruitment of a member of the employee's team and about her participation in an on-call rota. As a result the employee had intimated that she was unhappy working in the department and was looking for an alternative role with the employer.
For most of the employers I work with, all of this would be regarded as pretty minor stuff!
Nevertheless, her manager reached the view that the relationship had broken down and could not be recovered. It was therefore decided that the employee should be dismissed and she was told of this - during her annual appraisal.
No warning was given.
Now a breakdown in the relationship can certainly be a fair reason for dismissal (falling within the 'some other substantial reason' category) but I would certainly have said that in a case like this the employer should follow something analogous to a disciplinary procedure. At the every least the employee should have been told that dismissal was being considered and given an opportunity to consider her attitude and approach to work.
But the Tribunal held that such an approach would have been 'futile' in this case and the EAT held that they were entitled to take that view. Now in the classic case of Polkey v AE Dayton Services Ltd it is acknowledged that there will be cases where following a reasonable procedure would be 'futile' with the result that an employer can act reasonably in bypassing it - but it is very rare for a Tribunal to rely on this when finding that a dismissal is fair. it is much more likely that the finding would be one of unfair dismissal with a sizable 'Polkey deduction' from the compensatory award to reflect the probability that dismissal would still have happened even if the employer had behaved reasonably.
What seems to have happened in this case is that the employee admitted throughout that the relationship had indeed broken down and that she was looking to leave. That is commendably honest, but not perhaps the most tactically astute way of fighting the case. If she had said 'had I known that things had reached this stage, i would certianly have considered mediation or some other way of patching up our differences' then the outcome might have been different.
I certainly don't think that employers would generally be wise to follow Scotrail's example in this case. And just as it happens, I'll be talking about how employers should approach situations like this in my webinar on 'SOSR' dismissals on 25 November.
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