Employment Briefing - September Update

Martin Stephen

Published by
Martin Stephen

14th October 2020

Welcome to September's Employment news briefing, providing a summary of some of the recent employment judgements.

If you have any questions about any of the topics covered, or would like to discuss anything with our Employment team, please call Martin Stephen on 0141 248 3434 or email mss@wjm.co.uk

Redundancy pay and Furlough Scheme

The government has produced regulations, in force from 31 July, requiring employers to calculate statutory redundancy pay based on the redundant employee’s normal pay rather than their reduced pay under the Coronavirus Job Retention Scheme. The regulations, made on the 29 July and laid before Parliament the following day, also apply to other statutory entitlements associated with dismissal such as compensation for unfair dismissal, notice pay and so on.

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Calculating furlough pay for employees who come off furlough partway through a claim period

On 11 September 2020, HMRC amended its guidance on how employers should calculate the amount of a claim under the Coronavirus Job Retention Scheme (CJRS) to include a new method of calculation for employees whose furlough or flexible furlough ceases partway through a claim period.

The guidance now states that, when claiming in respect of an employee who comes off furlough or flexible furlough partway through a claim period, an employer should:

• Only calculate the employee’s usual hours up to the last day of furlough, instead of to the end of the claim period.
• Not include any working hours after the last day of furlough.

The amended calculation should be used from 14 September 2020 but employers do not need to amend claims submitted prior to this date.

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The Job Support Scheme

On 24th September 2020, the Chancellor of the Exchequer unveiled the latest range of measures to support businesses, employees and the self employed through the winter period. The measures include the extension of the Self Employed Income Support Scheme, more flexibility for those who have entered into the Bounce Back Loan Scheme, further VAT deferrals and relief as well as the Job Support Scheme (“The Scheme”) which will begin on 1st November 2020.

To learn more about the Job Support Scheme, please see our dedicated update here.

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Court of Appeal rejects state pension age challenge

R (Delve and another) v Secretary of State for Work and Pensions (Respondent) [2020] EWCA Civ 1199, an appeal against the High Court’s refusal to grant a judicial review in the "Backto60" campaign, has been dismissed.

The appellants were challenging how the government has increased the state pension age (SPA) for women from 60 to 65, on the basis of age and/or gender discrimination, and furthermore on the government’s obligation to provide notice.

However, the court held that there was no sufficient causal link between the withdrawal of the state pension from women in the age group 60 to 65 and the disadvantage caused to that group. The same reasoning applied to the increase from 65 to 66 for both genders. And furthermore, on the issue of notice, the court dismissed this ground of appeal on the basis that there was no duty to notify those affected by the change in the SPA. The court concluded "as a fact that there has been adequate and reasonable notification given by the publicity campaigns implemented by the Department over a number of years" (paragraph 120).

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Government launches KickStart scheme

The government has set up a Kickstart Scheme, making funding available for employers (of any size or type) to help provide jobs for 16-24 year olds. Key points to note:

• The funding offer is to pay the national minimum wage for a placement of 25 hours a week (this can be topped up by the employer) for 6 months.
• The job must be newly created and should not require extensive training before the person can be taken on; the placement is not the same as an apprenticeship but may turn into one later.
• Any organisation can apply for funding under the scheme, but if fewer than 30 placements are on offer at that workplace, the employer can join forces with another employer or employers and make a group application.
• Once a placement has been completed, it can be taken up by a second person, i.e. a rotating 6 month placement.
• The scheme applies to England, Scotland and Wales.

A link to government guidance on Kickstart can be found here.

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Aramark (UK) Ltd v. Fernandes: Can unguaranteed work constitute alternative employment in redundancy situations?

The Claimant in this case was dismissed by the Appellants and claimed unfair dismissal. It was accepted that a redundancy had arisen; the issue was whether or not the Appellants had complied with section 98(4) of the Employment Rights Act 1996 ("ERA") regarding the fairness of the dismissal, by not including the Claimant on a list of people they could turn to if they had a labour shortage. The tribunal accepted that the Appellants' failure to put the Claimant on the list was unreasonable and in breach of section 98(4) ERA, and so it held that the Claimant had been unfairly dismissed. The Appellants appealed.

On appeal however, it was held that the tribunal had to be satisfied, under section 98(4) ERA, that there was a sufficient reason for dismissing the Claimant; in this case, placing the Claimant on the list would not have avoided dismissal – although it would have opened the prospect of work, it would not have secured work. Therefore, the Appellants' decision not to place the Claimant on the list was not a decision that fell within the scope of the section. The appeal would be upheld and the claim dismissed.

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Taylor v Jaguar Land Rover Ltd – Employment tribunal holds that gender fluid/non-binary employees are covered by the definition of gender reassignment in the Equality Act 2010

On 14 September 2020, an employment tribunal upheld claims for harassment, direct discrimination and victimisation on the ground of gender reassignment brought against Jaguar Land Rover Ltd by one of its engineers. Ms Taylor, having identified as gender fluid/non-binary, usually dressed in women's clothing and as a result of which, claimed that she was subjected to insults and abusive jokes at work, suffered difficulties with the use of toilet facilities and managerial support.

A person has the protected characteristic of gender reassignment if they are proposing to undergo, are undergoing or have undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex (section 7, Equality Act 2010 (EqA 2010)). Noting that the question of whether a gender fluid/non-binary person fell within section 7 of the EqA 2010 was a novel point of law and the tribunal held that Ms Taylor was covered.

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