Discrimination – gender reassignment: Written reasons have now been published in a previously well-publicised case that found non-binary and gender-fluid individuals are covered by the Equality Act 2010, with the tribunal explaining their findings that, on the facts, the claimant “was on a journey of transition”, and that actual or intended medical treatment was not a pre-condition to having the protected characteristic of gender reassignment. Although only a first instance decision (and therefore not binding), we can perhaps expect to see further developments in the case law on this issue. [Taylor v Jaguar Land Rover]

Employment tribunal costs: The Court of Appeal has rejected an appeal and endorsed the notion that even where a tribunal orders a detailed assessment of costs, it can nevertheless set a maximum limit on the costs award by taking account of, for example, the paying party’s ability to pay. In this case, the costs cap was limited to the compensation and the cross-costs award made to the claimant in the proceedings. The case acts as a useful reminder that even where costs are recoverable in theory, recovery may be limited. [Kuwait Oil v Al-Tarkait]

Interim relief: A claimant alleging that her dismissal was discriminatory and/or an act of victimisation failed in her application for interim relief on the basis that the tribunal has no jurisdiction to award such a remedy (unlike in whistleblowing cases where it is available). However, it was suggested that this lack of jurisdiction may be incompatible with the European Convention on Human Rights (to which the UK remains a signatory notwithstanding Brexit), an issue which will need to be considered by the Court of Appeal. If the appeal succeeds, the availability of interim relief in discrimination claims could be introduced, significantly impacting the remedies available for complainants. [Steer v Stormshire]

Redundancy: A redundancy situation arises where there is a reduced requirement for employees to carry out work of a particular kind, and any background motive or conduct giving rise to that situation does not affect whether a redundancy situation exists. However, that motive or conduct (for example, in this case, the chief executive taking control of the management decision-making and operation, and undermining the managing director so as to render her position redundant) may be relevant to the reason for the dismissal and issues of fairness. Employers deliberately engineering a diminution in work so as to create a redundancy situation therefore still need to proceed with caution. [Berkeley Catering Limited v Jackson]

Restrictive covenants: When an employee left employment for a competitor during her probationary period, her former employer successfully obtained an interim injunction to enforce the nine-month non-compete and 12-month non-solicitation and non-dealing clauses of her contract. However, at the final hearing, these clauses were all held to be void, with the court’s comments acting as a useful reminder that generic restrictions can be problematic, as can enforcing restrictions against employees with relatively short service. In this case, the non-compete was found unreasonable for someone who had not yet established client relationships; where the geographical scope failed to have regard to the employee’s work or client base; where the legitimate interest could have been addressed by non-dealing restrictions; and where the 18-month backstop on non-solicitation and non-dealing caught clients she had inherited upon joining the firm, despite having little or no contact. [Quilter Private Client Advisors v Falconer]

Serial claimants – general civil restraint order: The High Court has imposed a two-year general civil restraint order on a claimant who brought 10 unsuccessful claims (and also brought appeals without merit) against his former employer, the effect being to prevent him from bringing any claims or making any applications without obtaining prior permission. The case acts as a reminder that there is potential recourse for employers faced with serial and vexatious claims. Interestingly, the High Court suggested that employment tribunals should, as matter of routine, specifically consider and make a finding on whether a case is completely without merit when rejecting a weak claim or application. [London Underground v Mighton]

Law reform and legislative developments

Acas early conciliation: With effect from 1 December 2020, there is now a standard six-week early conciliation period (extended from one month).

Criminal records: Legislation has been passed to remove the ‘multiple conviction rule’ (which required the automatic disclosure of all convictions, irrespective of the nature of the offence or sentence, where the individual had more than one), and to change the definition of ‘protected cautions’ (being the cautions, warnings, or reprimands which do not have to be disclosed) to include those given to persons under age 18. As a result, from 28 November 2020, youth convictions or warnings, and multiple convictions, will no longer be subject to mandatory disclosure when criminal records checks are carried out. [The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2020; and the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020]

Exclusivity clauses: The UK government has launched a consultation on whether exclusivity clauses should be prohibited for those earning less than the lower earnings limit (currently £120 per week). The consultation closes on 26 February 2021, and responses can be submitted online at beisgovuk.citizenspace.com.

Human rights: A review of the Human Rights Act 1998 is to take place, looking at the structural framework of the legislation as opposed to the rights themselves. Recommendations are expected in summer 2021.

Public sector exit payments: The decision to cap public sector exit payments at £95,000 (which took effect from November 2020) is being judicially reviewed.

Restrictive covenants: The UK government has launched a consultation seeking views on potential reform of post-termination restrictions in contracts of employment. In particular, views are sought on (1) whether non-compete clauses should only be enforceable where the employer has provided compensation during the term of the clause, and whether this could be complemented by additional transparency measures and statutory limits on their length; and (2) whether post-termination restrictions, including non-compete clauses, are unenforceable altogether. The consultation closes on 26 February 2021, and responses can be submitted online at beisgovuk.citizenspace.com.

COVID-19 update

Coronavirus Job Retention Scheme (CJRS)

• The scheme has been extended until 30 April 2021, with no change to the eligibility criteria or contribution levels expected. The review scheduled for January is not now anticipated to occur, with further updates now expected as part of the spring budget on 3 March 2021
• The latest guidance confirms that employers do not need to be facing a downturn in demand or be closed in order to furlough clinically extremely vulnerable employees or those at highest risk of severe illness
• HMRC will not be publishing details of employers who have claimed, nor an indicative value of their claim, until February 2021. When the information is published, it will be in respect of claims from December 2020. Also, from February 2021, furloughed employees will be able to access their personal tax account on gov.uk to see details of CJRS claims made for them.

Financial support schemes: The Bounce Back scheme, Coronavirus Business Interruption scheme, and Coronavirus Large Business Interruption scheme have all been extended to 31 March 2021, and businesses in the retail, hospitality and leisure sectors will be entitled to a one-off payment, worth up to £9,000, as a result of the latest national lockdown.

Gender pay gap reporting: Although pay gap reporting was suspended for 2019/20 due to the pandemic, it is expected to be required for 2020/21. The Government Equality Office (GEO) is reported as having provided guidance on how employers should report pay where they have furloughed staff, with details set out in this article at cipp.org.uk (although the GEO has yet to formally publish anything).

Senior executives – exemption from quarantine/self-isolation (England): Senior executives are permitted to temporarily leave self-isolation in England where they are taking part in business activities which are likely to be of significant economic benefit to the UK. The exemption only applies for the period of the eligible activity (that is, they must isolate for the rest of the time). The guidance sets out the types of executives covered, what “significant economic benefit” means, and examples of potentially permitted activity. Essentially, it may be permitted where the activity cannot be done remotely and where it has a greater than 50 per cent chance of creating or preserving over 50 UK jobs or resulting in more than £100 million in monthly purchases of goods or services from a UK-based business. Executives wanting to rely on the exemptions will need to carry and be prepared to show a letter on headed paper with prescribed information.

Statutory sick pay: The regulations have been amended, with effect from 24 December 2020, to reflect the reduction of self-isolation periods from 14 to 10 days. [Statutory Sick Pay (General) (Coronavirus Amendment) (No 7) Regulations 2020].

Work: Everyone is advised to work from home wherever possible, and the extremely clinically vulnerable are advised to shield and so should not attend the workplace if they cannot work from home.

Other news

Brexit: The transition period ended at 11pm on 31 December 2020, and the European Union (Future Relationship) Act 2020 giving legal effect in the UK to the various agreements on the future relationship between the UK and the EU received Royal Assent on 30 December 2020.

Immigration

• The new points-based system for skilled workers opened for applications on 1 December 2020.
• Eligible applicants can now apply for a frontier worker permit through the UK Immigration: ID check app. Online applications open on 22 January 2021.

2021 statutory rates: The following statutory rates are expected to apply from 4 April 2021, although this has yet to be confirmed formally:

• Statutory sick pay: £96.35 per week (up from £95.85)
• Statutory maternity, paternity, adoption, shared parental, and parental bereavement pay: £151.97 per week (up from £151.20)

What to expect in 2021

A summary of developments that we may expect in UK employment law and some key dates for the year ahead is available at reedsmith.com.