Welcome to our final newsletter of what has been an extraordinary 2020.
Normally, our December newsletter includes news about what to expect in 2021 but, needless to say, I’m not going to be foolhardy enough to predict anything beyond the basics at this stage. All we do know is that the workplace and general upheaval that we have all had to put up with for the last nine months is very unlikely to resolve itself in the near future and it may be that the toughest restrictions are yet to come.
Deciphering “Tiers 4 Fears”
It was fairly obvious when watching yesterday evening’s Government press conference that there is another divergence between politics and science. After Matt Hancock said on Sunday morning that the mutant strain of the coronavirus is “out of control”, there’s no doubt that Chief Scientific Adviser Sir Patrick Vallance was in favour of an immediate roll-out of Tier 4 restrictions nationwide and that it may be necessary to go even further: “It’s important to get ahead of this, and to make sure that the tiering system is adequate to stop things going, not to watch it and react in retrospect, and, given that we’re entering a period of inevitable mixing, I think there will be some increases in numbers over the next few weeks…What we did see was that in areas that had lower restrictions, you could still see growth in some places.” He also acknowledged that the variant is already “everywhere” in the country so there is an obvious inevitability about how the disease will spread in the coming weeks and months.
It has also emerged that a Government internal assessment early this month has suggested that there will be nearly 700,000 new cases a week by mid to late February, more than three times the current level, with 20,000 hospital admissions and 5000 deaths.
Nonetheless, Boris Johnson said that “We can certainly look forward to a very, very different world for this country from Easter onwards”. Well, of course, that depends on an unprecedented roll-out of effective vaccines and all is not well on that front. The AstraZeneca vaccine remains unapproved and the GlaxoSmithKline vaccine is subject to a setback which means that it may not be widely available until late 2021. The latter two vaccines are those that can be stored and distributed at near normal temperatures and, perhaps most significantly, they constitute the majority of the vaccines ordered by the Government.
In last month’s newsletter I quoted Government adviser Sir Andrew Hayward suggesting that allowing families to meet at Christmas was “throwing fuel on the fire” and that “bringing them together for hours, let alone days, with elderly relatives, I think, is a recipe for regret”. He has now said that the easiness with which the variant passes from person to person is “really terrible news in terms of the pandemic”.
While I really don’t want to be a harbinger of doom, particularly at this time of year, there is an accumulation of evidence which overwhelmingly suggests that the toughest months are yet to come.
The local position (Merseyside)
After a few positive weeks, like 90% of the rest of the country, there is now a significant upward curve in nearly all of the nearby local authorities. The figures are the weekly infection rate per 100,000 as at 16 December (the latest available).
- Warrington – 205.2 (+58.5%)
- Cheshire West and Chester – 194.4 (+81.7%)
- Cheshire East – 161.9 (+54.3%)
- Liverpool – 129.1 (+40.3%)
- St Helens – 123.5 (-1.8%)
- Knowsley – 122.0 (+21.0%)
- Wirral – 109.6 (+82.1%)
- Sefton – 99.1 (+50.6%)
You can find the rates for other local authorities here: https://twitter.com/UKCovid19Stats.
Further furlough extension
In a sign of what the Government is expecting, on 17 December Chancellor Rishi Sunak announced that the furlough scheme is being extended for a further month, until the end of April 2021. He also confirmed that the January 2021 review has been cancelled, so the 80% Government contribution rate of 80% will be retained throughout.
The deadlines for making claims are as follows:
- December 2020 – 14 January 2021
- January 2021 – 15 February 2021
- February 2021 – 15 March 2021
- March 2021 – 14 April 2021
- April 2021 – 14 May 2021
National minimum and living wage rates
The Government has accepted the Low Pay Commission’s recommendations for the National Living Wage and National Minimum Wage rates, which are as follows. It had been thought that rates might be increased by more than the recommendations but no doubt recent events have led to one of many rethinks. For clarity, in an important change, the National Living Wage is the rate for all those over 23 (previously 25) and the National Minimum Wage describes all the other rates.
|Category||Current rate||Rate from April 2021||Increase|
|National Living Wage||£8.72||£8.91||2.2%|
|21-22 year old rate||£8.20||£8.36||2.0%|
|18-20 year old rate||£6.45||£6.56||1.7%|
|16-17 year old rate||£4.55||£4.62||1.5%|
Government consultation on post-termination restrictive covenants
The Government is consulting on possible reform to the law relating to post-termination covenants. There are two identified issues. The first is whether to make such restrictive covenants only enforceable for as long as the employer continues to pay the employee. As the law stands, in order to be upheld if challenged, restrictive covenants need to be reasonable in terms of scope, area and duration (as applicable). Judges are much more readily convinced that restrictions are reasonable if they do not impinge (or at least not excessively) on an individual’s capacity to earn. It has therefore been good practice for a notice period broadly to equate to the restriction period. I think that there is a good chance that this will be adopted.
The second matter under consideration is the outright abolition of post termination covenants. The rationale for this is that they operate as a restraint of trade and are therefore contrary to public policy. This is the current starting point when considering post termination covenants but can be overridden if outweighed by the need of the employer to protect its legitimate business interests. This would be a radical move and is far less likely.
You can read the consultation here: Consultation on measures to reform post termination non-compete clauses in contracts of employment.
Practical Guide to Remote Hearings in the Employment Tribunal
The Employment Lawyers Association has produced a very useful guide for preparing for and taking part in remote employment tribunal hearings which are, of course, now the norm and likely to remain so for some time to come. The guide will be of most assistance to employent law practitioners, particularly concerning the preparation of electronic bundles.
Kind regards and, as I have said for several months now, very best wishes during this difficult time.