Covid–19 – Employment Law Update – 1 April 2020

Right to work checks – temporary measures introduced

The Home Office has provided guidance to businesses on how to carry out right to work checks during the Coronavirus pandemic. This is an issue we at SM&B have been lobbying the Home Office on, asking it to provide urgent guidance as many employers were unsure as to how to carry out right to work checks given many offices are “locked down”.  Please see our Business & Immigration specialist Sundeep Rathod’s post for further details.

Detailed guidance on claiming grants on the Coronavirus self-employed scheme

HMRC has provided detailed guidance on claiming a grant through the Coronavirus Self-employment Income Support Scheme. HMRC will contact those who are eligible for the scheme and invite them to apply online.

Workers’ concerns published by the Department for Business, Energy and Industrial Strategy (BEIS)

BEIS has published a selection of submissions from concerned workers following a recent appeal for the public to contact the BEIS parliamentary committee on the measures their employers are putting in place to help support them during the coronavirus crisis. Concerns include whether workplaces should remain open and safety measures. More information is available here.

The Chartered Institute for Personnel and Development calls for urgent mental health action

The Chartered Institute for Personnel and Development says employers need to act now to prevent employees from being at serious risk of mental ill health during & after the Covid-19 pandemic. Fear of infection & feeling isolated plus concerns about job or income loss are just some of the knock-on effects.

Inquiry into effects of Coronavirus on people with protected characteristics

The Women and Equalities Committee of Parliament has launched an inquiry into the different and disproportionate impact that the Coronavirus, and measures to tackle it, is having on people with protected characteristics under the Equality Act.

The Information Commissioner’s Office (ICO) launches Coronavirus data protection ‘hub’

The ICO has launched a ‘Data protection and coronavirus information hub‘ to help individuals and organisations navigate data protection during the pandemic. The ICO will add new and relevant information as the pandemic continues.

Suspension of wrongful trading rules

The government has announced a suspension of the wrongful trading rules under the Insolvency Act 1986. The suspension is part of a range of measures designed to help struggling companies keep trading during the Covid-19 outbreak.

Coronavirus and recruitment

Based on trends observed in China and Italy, a decline in hiring in the UK will likely accelerate in the coming days according to LinkedIn’s EMEA senior economist Mariano Mamertino.  LinkedIn data shows that hiring rates dropped shortly after both countries issued mandatory quarantines.

Q&A: TUPE and the Coronavirus Job Retention Scheme

The Transfer of Undertakings (Protection of Employment) Regulations 2006 known as TUPE protect employees when a business changes ownership.  Two leading employment law barristers have raised a number of issues as to whether employees who have the benefit of TUPE protections might also have access to the Coronavirus Job Retention Scheme.   We consider some of the key questions.

Q: If an employee is transferred by TUPE into a business with new ownership and that transfer occurs after 28 February 202, can the employee access the Coronavirus Jobs Retention Scheme?

The answer, unfortunately, is likely no. This has been described by one employment law barrister as a ‘loophole’ which the government ‘plainly hasn’t considered.’

Q: Why does TUPE not apply to the Coronavirus Jobs Retention Scheme?

TUPE is known to transfer ‘all rights, duties, powers and liabilities’ under an employer contract, but only insofar as they exist between an employee and their employer. Such rights and duties are not transferred to and from third parties.

We need to remind ourselves that furlough leave under the Jobs Retention Scheme is a matter between HMRC and the employer, not the employee and the employer, so TUPE cannot possibly transfer ‘furlough leave’.

Q: But I have heard from a few people that TUPE does apply to the Jobs Retention Scheme?

Some legal practitioners have said that HMRC officials have announced that they would regard employers transferred via TUPE as eligible for the Jobs Retention Scheme, but in the absence of any official guidance, this is purely speculative and legal experts consider it should be disregarded.

Should you require any assistance with your employment arrangements during this difficult period, do not hesitate to contact the co-head partners of our employment department.  Ewan Keen can be reached at 020 3206 2724 or ewan.keen@smab.co.uk or Tamara Ludlow at 020 3206 2739 or tamara.ludlow@smab.co.uk.