Welcome to our Autumn Higher Education Employment Eye. With the Country entering a second lockdown, you will not be surprised that this bulletin focusses on pandemic related employment law issues. We have also included a couple of cases, which although from outside the HE sector, are nevertheless hopefully of interest.

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Extension to furlough

We are aware that a number of universities have furloughed some staff, especially non-academic employees.  With the Job Support Scheme originally set to replace the Coronavirus Job Retention Scheme (“CJRS”) on 1 November 2020, the Government put a last minute stop to their plans and confirmed that they would instead be extending furlough until the end of March 2021. The scheme states that employers can furlough employees and apply for a grant “if you cannot maintain your workforce because your operations have been affected by COVID-19”. Guidance about how the scheme will operate during this extension was published on 10 November and an overview is given below:

  • The level of grant available mirrors that under the original CJRS in August 2020. The means the government will pay 80% of an employee’s normal pay up to a cap of £2,500.
  • There is no employer contribution to wages for hours not worked and employers will only be responsible for National Insurance Contribution and pension contribution. Employers are able to choose to top up employee wages above the scheme grant at their own expense if they wish.
  • In order to qualify for the scheme employers must have made a PAYE Real Time Information submission to HMRC between 20 March and 30 October 2020, notifying a payment of earnings for that employee. This may differ where the employer has re-employed an employee after 23 September 2020.
  • Employees that were employed on the payroll on 23 September 2020 and were made redundant or stopped working for their employer after that date can be re-employed and claimed for.
  • 30 November 2020 is the last day employers can submit or change claims for periods ending on or before 31 October 2020.
  • Furlough will continue to be flexible i.e. employees can continue to do some work.
  • Neither the employer nor the employee needs to have previously used the CJRS.
  • There is no maximum number of employees that employers can claim for.
  • The guidance also confirms that employers are able to furlough employees who are unable to work because they are clinically extremely vulnerable or who are unable to work because they have caring responsibilities resulting from COVID-19, including employees that need to look after children.
  • A new employer is eligible to claim in respect of the employees of a previous business transferred if the TUPE or PAYE business succession rules apply and the employees being claimed for have previously had a claim submitted for them by their prior employer.
  • The employer must confirm in writing to the employee that they have been furloughed, and keen a written record for five years.

For the time being, both the Job Support Scheme and the Job Retention Bonus have been put on pause with the extension of furlough providing significantly more generous support to employers. Employers may need to reconsider their position carefully as difficult decisions about redundancies and restructures may need to be revisited. However, given that the future remains uncertain, the long-term viability of jobs is likely to be a strong consideration for employers when considering the next steps forward and employers should be mindful that the government will review the CRJS in January 2021 to consider the economic circumstances and whether employers should be asked to contribute more. It is also worth noting that from December 2020, HMRC will publish names for companies and Limited Liability Partnerships (LLPs) and the company registration number of those who have made claims under the scheme for the month of December onwards.

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Rules of self-isolation

On 28 September 2020, The Health Protection (Coronavirus, Restrictions) (Self Isolation) (England) Regulations 20202 came into force.

The Regulations sets out mandatory self-isolation where an adult is notified that:

  1. They have tested positive for COVID-19 following a test after 28 September 2020; or
  2. They have had close contact after 28 September 2020 with someone who has tested positive.

Important to employers is Regulation 7 which makes it an offence for an employer to knowingly permit an employee or agency worker who is required to self-isolate, to attend any place other than where the individual is self-isolating. This means that an employer who knows that their employees should be self-isolating will be responsible for preventing them attending their place of work. If an employer fails to do this, they could receive a fine of at least £1,000.

Under Regulation 8, there is an obligation on the individual who is aware of their requirement to self-isolate, to notify their employer of this requirement and the state and end date of the isolation period. Any individual who breaches self-isolation will be committing a separate criminal offence.

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Updated guidance on shielding

Since 1 August 2020, shielding guidance for the clinically extremely vulnerable has been paused. This means that those individuals who are listed as ‘extremely vulnerable’ can go to work as long as the workplace is COVID-19 secure but should carry on working from home wherever possible. Employers should be mindful of the particular needs of different groups of workers or individuals.

Where the COVID-19 alert level is very high, employees are strongly advised to work from home. If they cannot work from home and are concerned about going to work, employers may want to speak to them about taking an alternative role or changing working patterns temporarily.

In some very high alert areas the government will write to some individuals to advise them to shield. If an individual receives this advice they are strongly advised to work from home. If they cannot work from home, then they should not attend work. If they cannot attend work for this reason, they may be eligible for Statutory Sick Pay or Employment Support Allowance.

Employers should consider both where the employee lives and works and if the employee is required to travel into an area at a different local COVID-19 alert level, they should follow the guidance for the area with the higher alert level.

The start of the academic year in September has seen the re-opening of buildings and campuses. The government has stated that it is the responsibility of the higher education provider, as an autonomous institution, to identify and put in to place appropriate plans, in line with government guidance. As part of the process of re-opening buildings, higher education institutions should produce risk assessments for the working environment. With the onset of winter and an anticipated increase in COVID-19 cases, employers should regularly check and amend their risk assessments and policies as appropriate. The government has encouraged providers to share best practice in order to achieve a consistent approach to reopening that puts the health and safety of students and staff at its heart. We therefore encourage open communication across all institutions to help ensure higher education employers are complying with their obligations under the Health and Safety at Work Act 1974.

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The EAT finds that where there has been an irretrievable breakdown in a working relationship, a complete lack of any procedure may not render a subsequent dismissal unfair (Gallacher v Abellio Scotrail (UKEATS/0027/19))

Where there has been an irretrievable breakdown in a working relationship, a complete lack of any procedure may not render a subsequent dismissal unfair.

The Claimant was employed by Abellio Scotrail Ltd and reported to Ms Taggart. Over a period of time, the relationship between the Claimant and Ms Taggart broke down, with disagreements about salary, recruitment decisions and an on-call rota. The business was posting a trading loss and was entering a critical period during which Ms Taggart needed to be able to rely on the Claimant. Ms Taggart considered that the Claimant’s role was pivotal and the breakdown in trust between her and the Claimant was disruptive to the business. Due to the critical time for the business, Ms Taggart did not feel that the situation was recoverable. Ms Taggart and the Claimant had both been looking for opportunities for the Claimant elsewhere in the company but had been unsuccessful.

At a meeting that had been diarised as an appraisal meeting, Ms Taggart told the Claimant that she was to be dismissed because of the breakdown in their relationship and its impact on the business. The Claimant did not challenge the premise that there had been a breakdown in their relationship. She was not offered an internal appeal. The respondent did not follow any other process in relation to the dismissal.

The Claimant brought claims in the employment tribunal for unfair dismissal and discrimination, both of which were not upheld. The Claimant appealed to the EAT.

The EAT upheld the employment tribunal’s decision. The judge commented that a failure to carry out any procedure would in many cases lead to the conclusion that the dismissal was outside the band of reasonable responses. However, in rare cases (not related to performance or conduct) it may be futile to follow any procedure. The employment tribunal had been entitled to find that in this particular circumstance, to follow a procedure would be futile and may even make the situation worse.

Case law has always contemplated that such a rare case may crop up where the respondent will be found to have acted procedurally fairly where it does not undertake any formal procedure at all before it decides to dismiss. This case is one such rare case and provides a useful example of a situation where no formal procedure was needed before dismissing because:

  • The relationship between the claimant and her line manager had irretrievably broken down; and
  • The undertaking of formal procedural meetings followed by a right of appeal would clearly and genuinely have served no useful purpose.

Employers should note that there was no dispute that the dismissal was because of the breakdown in working relationship, meaning that the ACAS Code was not applicable and the Claimant showed no interest in rebuilding their relationship. Had there been arguments around these points, the decision may have been different.

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The EAT finds that an internal appeal may nullify dismissal even if the employee does not want their job back (Phoenix Acacemy Trust v Kilroy (2020) UKEAT/0264/19)

Where an internal appeal against a dismissal overturns the dismissal, then in law it is as if there was no dismissal, even if the employee makes it clear when appealing that they have no intention of returning to their job whatever the outcome of the appeal.

The claimant was summarily dismissed by the respondent just before the respondent received his letter of resignation alleging constructive dismissal.

Shortly afterwards, the Claimant began the internal appeal procedure. Before the appeal was held, the Claimant’s solicitors wrote to the respondent that regardless of the result of the appeal, “there is no question of our client returning to his former employment.” This was closely followed by the Claimant lodging a tribunal claim for unfair dismissal based on his summary dismissal. The internal appeal was heard, with the Claimant being reinstated subject to a final warning. However, the Claimant instead then resigned, alleging constructive dismissal.

The Employment Tribunal held that the employee had not affirmed his contract by invoking the appeal process and upheld his claim of constructive dismissal. His employer appealed.

The Employment Appeal Tribunal allowed the appeal and found that by invoking the appeal process, the employee had in fact affirmed their contract. They therefore held that the Employment Tribunal’s decision that there was constructive dismissal should be set aside and that the determination of that issue should be remitted to the Employment Tribunal for reconsideration in light of their judgement.

The case confirms well established law that once a dismissed employee brings an internal appeal, they will be bound in all circumstances by the outcome. Therefore, if the result is the overturning of the dismissal, they will lose the right to claim unfair dismissal on the basis that the law will not recognise that there has been a dismissal. In such cases, the only option open to the employee will be to pursue a constructive dismissal claim.

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