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/ 22 Jan 2021

Employment Law Digest 2021

James Collier provides a digest of Employment Law and procedures for 2021.

James Collier

Senior Associate

Employment Law

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1. Employment Tribunal Claims and Procedure

The Employment Tribunal (ET) system in England and Wales had experienced a large increase in issued claims following the Supreme Court ruling that determined fees charged to Claimants to issue and progress their claims were unlawful, see R (on the application of Unison) v Lord Chancellor [2017] UKSC 51. Since that time, the ET system has become slower in dealing with claims and the time to progress certain claims to a final hearing has extended to years, rather than months. The COVID19 pandemic and the associated UK wide restrictions and lockdowns have only exacerbated this problem, causing the time it takes to reach a conclusion to a claim in the ET to become even more extended.

Due to these issues, the ET in England and Wales has adopted a more widespread use of remote hearings held by telephone and via an online platform (Cloud Video Platform [CVP]). This means that it is possible for a Claimant to issue a claim digitally, for the Respondent Employer to respond to the claim digitally, for any Preliminary Hearing to be held remotely by telephone and for a final hearing to be conducted via the online platform, CVP, so that the Parties may never meet face to face throughout that process. This obviously has potential benefits in the safe conduct of hearings and time saved, yet may also cause barriers to justice for Claimants or Respondents who are not well versed in participating in an online hearing.

The latest guidance of the President of the Employment Tribunal in England and Wales, released in a letter to National Tribunal Users Group on 6 January 2021, states that most hearings will be held wholly or partly remotely, so that attendance in person at a hearing would be the exception during the current restrictions and lockdown.

The Tribunal Guidance on Remote and In-Person Hearing can be found here: https://www.judiciary.uk/wp-content/uploads/2013/08/14-Sept-2020-SPT-ET-EW-PG-Remote-and-In-Person-Hearings-1.pdf

For Claimant employees this means extended delays in reaching an outcome to their matter and most likely having a final hearing that is held via an online platform. For Respondent employers this means that litigation can become lengthy and protracted, which usually increases the costs involved, and again, a remote defence of the claims brought against them in an online forum.

2. HMRC Guidance – Employer Furlough Scheme Claims To Be Published On 26 January 2021

On 13 January 2021, HMRC updated the guidance for the Coronavirus Job Retention Scheme (CJRS) to confirm how employers can submit requests to HMRC that details of their CJRS claims should not be published.

Under the CJRS, from 1 December 2020 HMRC may publish the details of employers’ claims, as a way of promoting transparency of the scheme and deterring fraud. However, claim details will not be published where employers are able to show and provide evidence that doing so would result in serious risk of violence or intimidation to certain relevant individuals (including individual employers, directors, officers or employees) or anyone living with them.

Employers may apply to HMRC to request that their CJRS claims are not published on this basis and employers in making that application will need to show their:

  • Employer Government Gateway user ID and password.
  • Employer PAYE reference number.
  • Business name.
  • Contact details.
  • Evidence in support of their application. No examples of suitable evidence are set out in the guidance. However, this could for example include a police incident number if an individual has been threatened or attacked.

The request must be made by the employer and the application need only be made once, as HMRC’s decision will apply to all claim periods from 1 December 2020 onwards. No details will be published by HMRC until a decision has been made about the application and the employer has been informed.

The revised guidance confirms that a list of employer names will be published on GOV.UK on 26 January 2021. Going forward, from February 2021, HMRC will publish employer names, an indication of the value of their claims and the company number (for companies and LLPs) on a monthly basis. Employers wishing to avoid being named on 26 January 2021 must therefore submit their applications as soon as possible.

Further details on how to make that application can be found at https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme#employer-claim-information-that-hmrc-will-make-public

3. UK Government Intention To Bring Forward An Employment Bill

The UK left the European Union on 31 December 2020 and during the transition period (2019-2020) the UK Government had announced its intention to introduce an Employment Bill to Parliament. The Bill was said to cover matters such as the establishment of a single enforcement body for the labour market and a requirement for employers to pass on all tips/service charges to workers.

A recent announcement from the new Business Secretary, Kwasi Kwarteng, confirmed that the UK Government would look at workers rights more widely since leaving the EU, yet stated that such a review would not result in a “bonfire of workers’ rights”.

Watch this space in 2021.

4. Upcoming Employment Law Consultations

1. Post-termination non-compete clauses. On 4 December 2020, the Department for Business, Energy and Industrial Strategy (BEIS) opened a consultation on measures to reform post-termination non-compete clauses in employment contracts. The consultation, which closes on 26 February 2021, seeks views on proposals to require employers to continue paying compensation to employees for the duration of a post-termination non-compete clause, requiring employers to confirm in writing to employees the exact terms of a non-compete clause before their employment commences, introducing a statutory limit on the length of non-compete clauses, or banning the use of post-termination non-compete clauses altogether.

2. Extending ban on exclusivity clauses. On 4 December 2020, BEIS opened another consultation on measures to extend the ban on exclusivity clauses in employment contracts to cover those earning under the Lower Earnings Limit, currently £120 a week. This would prevent employers from contractually restricting low earning employees from working for other employers. This consultation also closes on 26 February 2021.

5. Changes To Employment Law Coming Into Force On 6 April 2021

Payments on termination of employment. From 6 April 2021, the government’s changes to the current formula for post-employment notice pay (PENP) will come into effect. The aim of the amendments is to avoid unfair outcomes if an employee’s pay period is defined in months, but the contractual notice period is expressed in weeks. Introduced through draft legislation, the changes will also ensure that non-residents who receive PENP are taxed fairly. Legislation will be introduced in the Finance Bill 2020-21 to amend section 402D of the Income Tax (Earnings and Pensions) Act 2003 (ITEPA), section 402D of ITEPA and Chapter 5 of Part 2 and section 27 of ITEPA.

Hanne & Co Employment Law Services

Hanne & Co’s specialist Employment Law Department can assist both employers and employees in managing any Tribunal claim litigation, and can advise on and support those parties if appropriate to reach a negotiated agreed outcome to the Tribunal process, saving the time and expense of often delayed ongoing litigation.

We can assist and support employers in making the application to the HMRC that their CJRS (Furlough Scheme) claims should not be published publicly.

In the event that new employment law or rights come into force due to the UK’s departure from the EU, further to any Employment Bill, we can advise employers on those changes and assist them to formulate policies and new ways of working that are in compliance with any new employment legislation.

We provide cost effective and responsive legal advice and services to employees and employers. Please do not hesitate to contact us on 020 7228 0017

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