Employment Law Coffee Break | Navigating the latest Covid-19 challenges, what's in store for employers and an ECJ ruling on collective redundancies

Covid-19: Navigating the current challenges

Vaccinations

As the vaccine roll out continues, this week we talk to Mikael Nelson, a partner in our Stockholm office on the considerations for employers in Sweden. In the UK, the government is keeping under review the tiers of priority for vaccination with reports that key workers in public facing roles – including teachers and retail staff – may be prioritised ahead of others in phase 2 of the roll-out. We are advising clients on vaccination policies and the wider considerations for their business. Please do speak to your usual Osborne Clarke contact for support on this.

Listen to the episode and subscribe the the series:

Asymptomatic testing

With it clear that for many workers vaccination may well be sometime down the line, the Department of Health and Social Care is planning to scale up workforce testing for asymptomatic workers with the support of NHS Test and Trace, following successful trials with 15 large employers. Some businesses have already put in place their own testing regimes, which are seen as critical in maintaining staff confidence; the government has published guidance to support employers in setting up workplace testing. Any such testing regime will need to be carefully communicated to staff and any refusals handled sensitively; any alleged detriment or dismissal for refusing to take a test will leave a business vulnerable to claims. Care must also be taken to ensure that any testing and notification of results complies with data protection obligations (the Information Commissioner's Office has also published helpful guidance) and that staff understand their legal obligation to self-isolate if they test positive.

HMRC has also updated its guidance on how to treat certain expenses and benefits provided to employees during Covid-19, providing that where employers are providing antigen testing kits to their employees, no income tax or Class 1A National Insurance Contributions will be due. Similarly, employers and their employees will not be liable to any income tax or NICs where an employee receives money from their employer for obtaining such a test.

Job support

This week has seen reports that the chancellor of the exchequer, Rishi Sunak, will set out in the budget on 3 March "the next stages of [the Treasury's] plan for jobs to support businesses and families across the UK… it will be the priority for the year to come". As we have seen previously when the Coronavirus Job Retention Scheme (CJRS) has been set to close, there are concerns being raised that if future support post 30 April 2020 is not confirmed soon, we may soon start seeing more job losses. The CBI has called for the CJRS to be extended until the end of June, whilst the TUC has indicated that the scheme should stay in place until the end of 2021. However, it remains possible that the Chancellor may instead introduce other policies similar to the Job Retention Bonus and Job Support Scheme – rewarding employers and supporting staff in 'viable' jobs and providing for more incentives around skills and training.

Employers already utilising the CJRS should note that HMRC intends to publish on 26 January 2021 the first list of names of employers who have claimed under it since 1 December 2020.There are limited grounds on which an employer can request to be excluded from the list, with details of how to apply here. From February, additional details will be published on a monthly basis including an indication of the value of the claim within a banded range.

What's in store for employers in 2021 and a focus on the TCA

Osborne Clarke has published its latest regulatory update looking at key dates and issues across a number of areas, including employment law, with a special focus on the EU-UK Trade and Cooperation Agreement (TCA). Please do share this with your colleagues. To understand more on the impact of Brexit on immigration rules and business trips in the UK and Europe please watch our latest webinar.

Since publication of the regulatory update, Business Secretary, Kwasi Kwarteng has confirmed that the government has begun a review of UK employment law following media coverage last week. However, he has stated that the government is not looking to "whittle down" labour market standards but is looking at a whole range of issues relating to EU membership and examining what we "wanted to keep", stating that "we're absolutely committed to having a really high standard for workers".

Whilst there is no detail of any proposals under consideration, requirements around recording working time and elements of holiday pay deriving from EU law are a potential focus for review. As part of the TCA, the UK has agreed that it shall "not weaken or reduce, in a manner affecting trade or investment between the parties, its labour and social levels of protection below the levels in place at the end of the transition period"; it remains to be seen whether any proposed reforms would be considered to be so significant as to affect trade or investment.

Collective redundancies: What is the reference period for triggering collective consultation?

With collective redundancies in consideration for many employers, it is important to correctly identify when the collective consultation obligations are triggered. Under the our statutory provisions set out in the Trade Union and Labour Relations (Consolidation) Act 1992, the obligations are triggered when 20 or more redundancies are proposed within a 90 day period at one establishment.

It can sometimes be complex to identify when the threshold is met particularly where there are batches of redundancies spread out over a period of time. In a recent Spanish case, the CJEU has held that the relevant 90 day period is any 90 consecutive days which include the dismissal in question; this period can therefore run backwards or forwards from this point. This ruling presents obvious practical difficulties for employers who may have proposed dismissals under the threshold and who are then retrospectively required to collectively consult with these employees when further dismissals trigger the collective consultation obligations.

Whilst this decision predates the TCA so is required to be considered by our Employment Tribunals, it remains to be seen whether our current statutory wording could be interpreted to conform with this ruling and, indeed, whether there is any appetite to now do so following the ending of the Brexit transition period.