UK Covid-19: update on latest employment law developments and cases; extended gender pay gap reporting deadline imminent

Below is a round-up of recent Covid-related developments.

• Changes to the self-isolation rules for double-jabbed workers came into force in England from 16 August.  Individuals who received their second dose of the vaccine at least 14 days earlier no longer need to self-isolate if identified as a close contact of someone testing positive, but are advised to take a PCR test as soon as possible and to take precautions (such as lateral flow testing, wearing a face covering and limiting contacts, especially with clinically extremely vulnerable individuals) until the test result is received. They are not obliged to inform their employer that they are a contact of a positive case if they are exempt from self-isolation, and employers are not expected to check whether an individual is exempt from self-isolation. The individual will only be required to self-isolate if they develop symptoms or test positive.  The Government's guidance on Test and Trace in the Workplace has been updated to reflect this change, available here.
• The Coronavirus Job Retention Scheme (CJRS) is due to end on 30 September.  Employers with furloughed staff will need to submit claims in respect of August wages by 14 September and September claims by 14 October.  They will also need to consider whether furloughed staff can be brought back to work, if new terms need to be agreed, and whether redundancies may be necessary. CJRS grants cannot be claimed for any days an employee spends serving a contractual or statutory notice period, including notice of retirement, resignation or redundancy.
• The temporary adjusted right-to-work check measures have been extended until 5 April 2022 (inclusive) - see here.  These concessions enable checks to be done by video and for individuals to send electronic copies of their documents to employers rather than the originals.
• A few first instance (and therefore non-binding) tribunal decisions have now been given concerning the use of furlough.  The cases of Mhindurwa v Lovingangels Care Ltd and Handley v Tatenhill Aviation Ltd indicate that it will not be unfair to decide to make an individual redundant just because they could have been furloughed instead, but it could be unfair if there was no good reason for rejecting furlough (and financial pressure could be relevant given that the CJRS does not cover 100% of employment costs) or where the employer failed at least to consider furlough as an alternative to redundancy.  In Mhindurwa the tribunal held that, where a live-in carer's current work ended when the patient moved into a care home, a reasonable employer would have considered the possibility of furloughing the employee for a period to see if other work became available, rather than moving straight to redundancy; her dismissal was therefore unfair.  In contrast, in Handley, the tribunal accepted the employer's evidence that it needed to cut costs irrespective of the furlough scheme and wished to use the scheme to pay some of the redundancy costs (this was permitted under the version of the scheme in place until the end of November 2020).  The employer was a small business facing a substantial loss of income and its decision not to continue to use furlough in the circumstances did not render the redundancy unfair.

Choices over whom to furlough could also raise issues of discrimination.  In Dawson v Evans Cycles Ltd, the employer decided on 16 March 2020 to furlough on full pay all of its retail employees who had chronic underlying health conditions, were pregnant or were over 60, with the aim of protecting the health and safety of those it considered to be particularly clinically vulnerable.  The tribunal accepted that this was prima facie direct age discrimination against a 62 year old claimant who wished to carry on working, but held that the health and safety aim was legitimate and that the stay-at-home order on those over 60 was proportionate and therefore justified, given the continuation of full pay and the temporary nature of the restriction.  The employer had had to make a quick decision based on limited data in an unprecedented situation which was "very dangerous, frightening and rapidly worsening".  Although the government had not issued any guidance that over-60s were particularly vulnerable, there was evidence that the risk of serious disease increased with age from 50 years upwards.  Further, the employer had allowed the claimant's grievance and permitted his return to work two months later.  In the exceptional circumstances, the employer's actions were justified, but the tribunal stressed that the decision was very fact-specific.

• Finally, a reminder that the Equality and Human Rights Commission has stated that it will start enforcement action against employers failing to report their 2020/2021 gender pay gap (using the snapshot date of 5 April 2020) by 5 October 2021.  Employers were given an extra six months to report due to the pandemic.  Employees who were furloughed on reduced pay as at 5 April 2020 should not be included when calculating the hourly pay figures; where this gives a misleading impression, employers may want to explain this in a voluntary narrative accompanying their report.  Government guidance is available here.