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Top 5 recent workplace developments – April 2020

  • Legal Development 29 April 2020 29 April 2020
  • UK & Europe

  • Employment, Pensions & Immigration

This is our selection of the recent developments which we think will have the most significant impact on HR practice. This month the key development has been around the Coronavirus COVID-19 Job Retention Scheme. Our update also features important Supreme Court decisions concerning vicarious liability and data breach, as well as the new legal right for employees to take parental bereavement leave and pay.

Top 5 recent workplace developments – April 2020

1. COVID-19: The Job Retention Scheme

The UK government's Job Retention Scheme, announced on 20 March 2020, is designed to support employers pay the salaries of those employees who take a temporary leave of absence because of the problems their employer is facing due to the coronavirus.  Guidance on the Scheme has been published, and substantially updated, during April.

There is guidance for employers on the Scheme (Check if you can claim for your employees' wages through the Coronavirus Job Retention Scheme) and guidance for employees (Check if your employer can use the Coronavirus Job Retention Scheme).

HMRC has issued a step-by-step guide for employers to assist them when they make a claim under the scheme. This sets out the information that employers are required to provide and what employers need to do to make a claim.

An additional guide, Work out 80% of your employees' wages to claim through the Coronavirus Job Retention Scheme, assists employers in calculating how much they can claim under the Scheme and includes various examples on how to calculate claims.

The legal parameters of the scheme are set down in the Treasury Direction.

Read our Clyde Guide to Employment Issues and COVID-19 for a more detailed overview of the Scheme.

Practical point

Further changes to the guidance are possible in the coming days and weeks, and it is hoped that these will bring clarity for employers on tricky issues under the Scheme.

2. COVID-19: How to make a claim under the Job Retention Scheme

The Job Retention Scheme opened for claims on 20 April 2020. The link to guidance on how to make a claim can be found here.

Key points on making a claim under the Scheme include:

  • Claims must be made by employers online
  • Employers can only claim for periods when their employee is on furlough
  • Employers can decide the length of each claim period, based on the frequency of payroll
  • Employers must include all employees they want to furlough for each claim period, because they can't make another claim for the same period, or one that overlaps with it. It isn't possible to amend a claim once it has been submitted - although HMRC is looking into this
  • Employers cannot make more than one claim during a claim period – they should make their claim shortly before or during running payroll
  • Employers must claim for all employees in each period at one time – they cannot make changes to their claim once it is submitted
  • Employers can make their claim in anticipation of an imminent payroll run, at the point they run their payroll or after they have run their payroll. Claims can be backdated to 1 March 2020 or any subsequent date from which employees were furloughed. A claim cannot start any earlier than the date the employee was first furloughed. This is relevant to employees who were made redundant or stopped working for their employer between 28 February and 19 March and have been rehired
  • Employers should keep records of any claim made under the Scheme, the amount claimed for each employee and the period each employee is furloughed.

Practical point

HMRC has published guidance and a guide for employers, which employers should read carefully before making a claim and ensure that they have all the required information ready.

Read our detailed update Covid-19 Employment: Furlough: Coronavirus Job Retention Scheme opens and further guidance issued.

3. Vicarious liability: Data theft by an employee

The Supreme Court has ruled that the supermarket chain Morrisons was not vicariously liable for the actions of a rogue employee who, driven by a grudge against the company, took payroll data relating to 100,000 employees and published it online.

Mr Skelton, a disgruntled employee of Morrisons, leaked the personal details (including bank account details) of almost 100,000 employees on the internet. He was a senior IT auditor and had been motivated by a grudge against Morrisons.

The Supreme Court allowed the appeal. It said that no vicarious liability arose because Mr Skelton was authorised to transmit payroll data to the auditors, and not to upload the personal date online. His online disclosure was not so closely connected to that task that it could be regarded as having been made by the employee in the course of their employment. 

Practical point

This decision has significant implications for employers who feared that this case would set a precedent for future class actions arising out of data breaches by rogue employees. It offers some reassurance to employers, that although employment may provide an opportunity to commit a wrongful act, this is not of itself sufficient to make an employer vicariously liable for such an act. Employers will not normally be vicariously liable where an employee is not engaged with furthering the employer's business and commits a wrongful act while pursuing a personal vendetta. 

WM Morrisons Supermarkets plc v Various Claimants

See also our detailed update Morrisons’ Supreme Court appeal successful on vicarious liability for data theft by an employee.

4. Vicarious liability: Assaults by an independent contractor

The Supreme Court has found that Barclays Bank was not vicariously liable for sexual assaults carried out by a doctor who was engaged as an independent contractor.

A doctor committed sexual assaults in the course of medical examinations and assessments which were a precursor to, or during, the claimants' employment with Barclays and carried out at Barclays' request.

The Supreme Court considered whether there was a relationship between the parties which was capable of giving rise to vicarious liability (the first stage of the two-stage test for vicarious liability). The key issue was whether the doctor had been carrying on business on his own account or whether the relationship was close to that of employer/employee.

The Court concluded that the doctor wasn't 'anything close to an employee' of the Bank, so the first stage of the vicarious liability test wasn't met. The reasons for this included that:

  • the work the doctor did for Barclays was a small proportion of his practice
  • he was paid a fee for each assessment, not a retainer, and could refuse to do an examination
  • he was in business on his own account as a medical practitioner with a portfolio of patients and clients, which included Barclays

So the Supreme Court ruled that, because on the facts the doctor was an independent contractor, Barclays could not be vicariously liable for his actions.

Practical point

This case clarifies that where there is a relationship with a self-employed person who is genuinely in business on their own account, this relationship does not attract vicarious liability.  This decision will be welcomed by employers, in particular those that engage independent contractors.

That said, where there is some doubt over whether an individual is genuinely conducting their own independent business, the organisation will potentially be liable for the individual’s actions.

Barclays Bank plc v Various Claimants   

5. Statutory parental bereavement leave and pay

From 6 April 2020, parents who have suffered the loss of a child under 18 or a stillbirth from 24 weeks' pregnancy will be entitled to two weeks’ statutory parental bereavement leave (PBL). They can also receive statutory parental bereavement pay if they have 26 weeks’ service.

The Government has published its Statutory Parental Bereavement Pay and Leave: employer guide. This guidance confirms employees' entitlements to statutory bereavement leave and pay, who is eligible, the notice required to start and cancel leave and pay, dealing with requests for employees who aren't eligible, and the records employers must keep of payments made.

Practical point

Managers and Payroll should be aware of the organisation’s obligations in relation to these new rights. In particular, managers will have to understand who falls within the statutory definition of parent for the purposes of taking PBL so that they don't refuse requests from eligible employees. Employers should also ensure that managers are aware that employees have the right not to suffer any disadvantage by taking PBL and have the right to claim unfair dismissal if they are dismissed because they have taken or wished to take PBL.

Employers should update their policies and procedures to take account of the introduction of this new right. 

For further details about these new rights, see our update Statutory bereavement leave and pay for parents from April 2020.

If you have any questions or would like advice on these issues, please get in touch with your usual Clyde & Co contact.

For more Coronavirus (Covid-19) information please see our Coronavirus hub here.

Written by Charles Urquhart and Corinna Harris.

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