Welcome to our February newsletter.
It’s been a busy month so here goes!
The “one way road to freedom”
On 22 February, Boris Johnson announced to Parliament, and subsequently the nation, his much awaited “roadmap”, setting out the earliest dates by which the current restrictions might be relaxed in the coming months. You can view a handy summary of the key dates in this article on our main website. While broadly welcomed, the plan appears to be cautious but, equally, I think that many of us would not be surprised if the timetable slips, not least because of likely bumps in the road in the vaccination roll-out and the risk of new variants. Is it really “irreversible”?
In the longer term, it was notable that Professor Chris Whitty made it clear that Coronavirus is “likely to be a problem for the next few winters”.
So many things need to fall into place. I noticed that my local infection rate/100,000 has increased over the last few days from 159 to 220 and that’s before we start emerging from lockdown. The UK national rate is 116 and it’s 158 in the North West of England. St Helens is among the highest at 240 (Knowsley 176, Liverpool 169, Sefton 137, Cheshire West and Chester 130, Wirral 117)
Working from home
It’s clear from the roadmap that working from home for office workers, including solicitors, will remain the default until at least 21 June. This is the proposed end-date for the removal of all legal limits on social contact and the re-opening of all closed settings and is, perhaps, the most vulnerable to further delay. As I pointed out in my article on the main CLB website, guidance beyond the end of the roadmap will still include washing hands frequently, wearing a face covering in enclosed environments, maintaining space with anyone outside your household or bubble, meeting outside where possible and minimising the number and duration of meetings with other people.
Downing Street has made it clear that it considers that a requirement for existing employees to be vaccinated would be discriminatory. However, Justice Secretary Robert Buckland has said that it “may” be lawful for employers to insist that new employees are inoculated, with such a requirement included in new contracts of employment. He commented, “Generally speaking I’d be surprised if there were contracts of employment existing now that did make that approach lawful. I think frankly the issue would have to be tested.”
He might wish to check the existing standard NHS contracts which require Hepatitis B injections for all staff in all relevant categories. While I accept that a blanket requirement for all employees may be going too far, as I have mentioned in previous newsletters, it seems to me that there is a compelling public health argument to require vaccinations in certain settings such as care homes.
The future of CBILS
In advance of next week’s budget, it has been reported in The Times (behind paywall) that there is a lively argument going on about what should succeed CBILS loans, which are likely to be closed shortly. The Government is planning for a permanent taxpayer-backed lending programme to replace the existing scheme. Details were due to be published last month but have been delayed as result of disputes relating to the pricing of loans and the extent of security required. After the 2008 financial crisis numerous non-bank lenders emerged to provide assistance to those who could not secure conventional bank borrowing, but generally at much higher interest rates and with security obligations such as personal guarantees and debentures. The ongoing debate means that the announcement may be delayed beyond the budget, with HM Treasury saying no more than that “We will be providing details in due course”.
The furlough scheme is currently scheduled to run until April 30. However, the consensus is that, taking into account the “roadmap”, it is bound to be extended.
The recently well-informed Sun has reported that its phasing out is unlikely to commence until this autumn. It’s one to watch out for in the Budget speech at 12:30 next Wednesday 3 March.
Furlough is not required to be offered by employers. However, the TUC has urged that shielders, now including the further 1.7 million people added to the clinically extremely vulnerable shielding list on 17 February, who cannot work from home should be offered this option. From an employer’s perspective, it seems to me that this is sensible advice, not least because of the obligations on employers from a health and safety perspective and the corresponding risk of potentially very valuable claims.
The Uber decision in the Supreme Court
It’s taken five years to work its way through the courts, but we now have the final and unanimous decision of the Supreme Court concerning the employment status of Uber drivers.
“It is difficult to think of ways in which Friday’s supreme court ruling on the employment status of Uber drivers could have been more emphatic or conclusive than it was. The six justices agreed unanimously to uphold a ground-breaking employment tribunal finding made against the company in 2016. Uber drivers, the court confirmed, are not self-employed – as Uber argued in a succession of appeals – but should be treated as workers, with rights to be paid at least the national minimum wage, to holiday pay and other benefits.”
Based on numerous court decisions in the last few years, this is not in the least surprising because the prevailing view of the courts, going back over decades, is that the key determining factor is the extent of control and supervision exercised over the relevant workers.
The court found that Uber:
- Set the fares which could not be exceeded
- Set the terms of the contract between drivers and passengers
- Determined which app requests should be accepted or rejected
- Monitored customer satisfaction with the service provided
As the court said, Uber drivers “are in a position of subordination and dependency in relation to Uber”. It added that the purpose of employment legislation is “to give protection to vulnerable individuals who have little or no say over their pay and working conditions” and that “the legislation also precludes employers, frequently in a stronger bargaining position, from contracting out of these protections”. As such it has the feel of a public policy statement which will be of wide application.
As highlighted by employment barrister Daniel Barnett, the key points are that:
- “A tribunal should examine the reality of the relationship between the parties, and not be bound by what the documentation states. On this analysis, the tribunal was entitled to find that Uber drivers are “workers”, not self-employed sub-contractors.
- “The drivers are “workers” from the moment they switch on their apps, and are available for work in their area, to the time when they switch their apps off at the end of the day (or, presumably, for a break).”
The ramifications are significant and relevant to many so-called “gig economy” workers, particularly the oh so prevalent delivery drivers during the current pandemic.
Employment law reform
The Government has backtracked on its commitment to overhaul employment law. As I reported in our blog, back in July 2017 Matthew Taylor published his report on modern working practices. Having been “stood down”, Mr Taylor has noted that initial enthusiasm for employment reforms has “waned, and waned, and waned”.
You can read more about Mr Taylor’s general dissatisfaction with the lack of progress here.
Fire and rehire
Many large employers have been criticised for deploying a policy of requiring employees to agree to less advantageous terms of employment, including pay cuts, under a procedure known as “fire and rehire”. A notable example is British Gas, as reported here by the BBC.
One such employer, Tesco, has been stopped in its tracks by an injunction granted by the Scottish Court of Session which may provide an early indication of how the courts will treat such procedures in future. Although the injunction provides a temporary cessation of the process, in order to be granted it requires, behind it, a good arguable case with a realistic chance of success.
In this case Usdaw claimed that some staff at the retailer’s Livingston distribution centre were being required to sign new contracts which would result in them losing between £4000 and £19,000 per year.
According to the TUC, since the start of the pandemic, almost one in ten workers have been told to reapply for their jobs on worse terms or face redundancy, with young, lower-paid and ethnic minority workers particularly affected.
According to ACAS guidance, forcing a disadvantageous change in contractual terms should only be used as a last resort.
In practice, it is a high-risk strategy for employers and all the more so after this recent decision. If it is something that you are contemplating, we urge you to contact us for specialist advice.
Public sector exit payments
Many months and years ago I reported about the spiralling costs of public sector payoffs (e.g. this from September 2014). In response the Government introduced the Public Sector Exit Payment Regulations 2020 which capped such payments at £95,000 However the Regulations, introduced in November 2020, were badly drafted and it comes as no surprise that, as confirmed in a Treasury Direction, they are now suspended, pending a formal revocation. A classic example of trying to tinker with the result rather than the underlying cause and, although probably not the shortest-lived legislation ever, definitely right up there. I’ll leave you, dear reader, to reflect on the competence, or lack thereof, on show.
Installing a covert camera in an office while suspended. Gross misconduct?
No, according to the Employment Appeal Tribunal in Northbay Pelagic Ltd v Anderson. No time for a commentary given all the other news but, in brief summary, the EAT decided that the decision to dismiss fell outside the band of reasonable responses available to the employer because the employer’s omission in conducting a balancing exercise between the right to privacy and Mr Anderson’s wish to protect his confidential information was unreasonable. If you want to read the 52-page decision you can do so here.
Compensation for defamatory Trustpilot review
Many of us are realising that website reviews are an inevitable aspect of marketing our businesses, whether we like it or not. At Canter Levin & Berg, we received four bogus Google reviews within a matter of minutes which were not from clients, but the process of getting them removed is slow and highly irritating.
In an encouraging riposte to such problems, summary judgment has been granted in the case of Summerfield Browne Ltd v Waymouth. Mr Waymouth posted on Trustpilot “A total waste of money another scam solicitor” (sic). The firm brought a claim for general damages limited to £25,000 and special damages of £300 per day to cover resulting reduced fee income, as well as an order for the defamatory words to be removed from Trustpilot.
Mr Waymouth posted the review after instructing the firm on a fixed fee of £200 relating to a dispute concerning the enforcement of a court order. He did not explain the reasons for his dissatisfaction and did not engage with the firm’s complaints procedure. The firm noted that, in the five weeks following the post, weekly enquiries dropped from 50-60 to 30-40.
The claim for general damages at £25,000 was successful and Trustpilot was ordered to remove the review.
However, Trustpilot has challenged the order, saying that:
“As a public, open review platform we believe in consumers having the ability to leave feedback – good or bad – about a business at any time. If consumers are left fearful of leaving negative reviews, this could result in consumers being misled about the quality of a business, and businesses being deprived of the valuable feedback from which they can learn, improve and grow.”
This issue needs to be addressed sooner rather than later and, as with many aspects of social media and similar interaction, the rule of law needs to be asserted and enforced so that users are reminded that their contributions come with social and legal obligations.
What about holidays?
If you’re like me, you can’t wait to get on a plane and jet off for a bit of sunshine as a welcome contrast to the boring routine of working from home. We’ll have to wait and see what is going to happen with vaccine passports (surely inevitable) but it’s worth bearing in mind that it’s a two-way process. If international travel is permitted, rates will have to be contained in both the UK and the holiday destination. So, how are some of the most popular European countries doing? Here are the latest available rates/100,000 (as at 22 February):
- Sweden 220
- France 208
- Spain 164
- Netherlands 157
- Italy 145
- Portugal 114
- Ireland 111
- Greece 72
- Turkey 63
- Germany 63
- Norway 38
- Gibraltar 27
Unfortunately, vaccination rates in continental Europe are low, based on lack of availability and limited uptake. The UK is well ahead of the rest at 26.81/100 people (as at 21 February) and here are the rates for some of the more popular destinations:
- Denmark 8.38
- Norway 6.86
- Greece 6.69
- Portugal 6.62
- Ireland 6.61
- Cyprus 6.48
- Spain 6.28
- Germany 6.05
- Sweden 5.8
- Italy 5.8
- Belgium 5.76
- France 5.48
- Netherlands 4.55
From a personal perspective I’m disappointed to see that the situation is worsening in France with 10 departments described as “very worrying”. Regrettably, it seems that trips to France will remain very unlikely for the foreseeable future.
Kind regards and, as I have said for several months now, very best wishes during this difficult time.