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A summary of recent developments in the employment sector, most of which have been triggered by COVID-19.
In this edition, Kennedys experts explore the impact of the end of the UK furlough scheme. We also consider, via the lens of the care home sector, the issue of whether employers can require their employees to be vaccinated against COVID-19 and whether this will lead to a new generation of workplace claims in the UK.
Globally, we take a look at the big issues facing Australian employers and their insurers, along with the implications of the Hong Kong Court of first instance decision of Lam Siu Wai v Equal Opportunities Commission [26.10.21].
Coronavirus job retention scheme – the end of the furlough scheme in the UK
The Coronavirus Job Retention Scheme came to an end on 30 September 2021. Responsibility for staff salary costs now rest solely with employers once more and the UK Government will no longer make financial contributions towards the pay of employees who were previously furloughed under the scheme.
For some businesses, this financial support has enabled them to weather the COVID-19 storm. For others, this will unfortunately not be the case and businesses will need to urgently consider their options in relation to their workforce. Bringing employees back from furlough presented unique challenges for each business.
Bringing employees back from furlough presented unique challenges for each business.
Contacts: Amanda Beaumont, Matthew Leake and Rebecca Mann
Related item: Coronavirus Job Retention Scheme – the end of the furlough scheme in the UK
The future of the care home sector: no jab, no job
Whether employers can require their employees to be vaccinated against COVID-19 continues to be a hot topic. This has only been fuelled by the UK Government’s decision to make vaccinations compulsory for care home staff in England (from November 2021). To add to this melting pot, on 9 September 2021, the government launched a consultation on mandatory vaccination for frontline health and care staff. So, what is the current position and what are the potential implications of this new legislation on the care home sector?
The amended regulations are somewhat controversial. From an employment law perspective, practical steps that employers should consider include assessing the COVID-19 vaccination uptake amongst their workforce and continuing to engage with staff to encourage voluntary vaccination. However, from a liability perspective, compliance with the regulations won’t close off any avenues to prospective claimants.
However, from a liability perspective, compliance with the regulations won’t close off any avenues to prospective claimants.
Contacts: Matthew Leake and Amanda Beaumont
Related item: The future of the care home sector: no jab, no job?
COVID-19 workplace claims: a new generation of claims and enforcement action
A number of countries in Europe, as well as Canada and South Africa, already recognise long COVID as an occupational disease.
It is possible, due to public and political pressure, that COVID-19 and long COVID will also become a recognised occupational disease in the UK where it can be demonstrated that an employee was potentially exposed to COVID-19 for a prolonged and significant period during the course of their employment as a consequence of the nature of their work activity, contact with others and/or inadequate COVID-19 secure measures.
We anticipate this could lead to an influx of claims (some of which may be fraudulent) in the near future. Claimants will, however, need to prove causation, which is likely to be extremely difficult given the transmissibility of the virus.
Claimants will, however, need to prove causation, which is likely to be extremely difficult given the transmissibility of the virus.
Contacts: Matthew Leake and Amanda Beaumont
Related item: COVID-19 workplace claims: a new generation of claims and enforcement action?
The big issues facing Australian employers and their insurers in 2021
The past 18 months have demonstrated the agility and speed with which employer obligations can change, with far reaching consequences for many businesses. Some of these changes include:
- The management of COVID-19 in the workplace. Given the lack of clarity and sensitivities associated with mandatory vaccinations, this is fertile ground for disputes against employers.
- In March, the Fair Work Act 2009 (FWA) was amended to define casual employment. This was further clarified by the Rossato appeal in August and followed by the creation of a pathway for conversion from casual to permanent employment. There is also now a Casual Employment Information Statement. We anticipate that all these changes will significantly reduce the number of claims made by casual employees for alleged underpayment.
- In September, the Sex Discrimination and Fair Work Act (Respect at Work) Amendment Bill (Respect at Work Bill) was passed. Of significance, the Bill did not implement the recommendation to create a positive duty for employers to prevent sexual harassment in the workplace. We expect these changes will expand the scope of existing claims, rather than leading to new types of claims.
The coming months will certainly see further ramifications from the passage of the Respect at Work Bill, the FWA amendments and the Rossato decision, which have each invoked significant changes for employers.
The coming months will certainly see further ramifications from the passage of the Respect at Work Bill, the FWA amendments and the Rossato decision, which have each invoked significant changes for employers.
Contacts: Justin Le Blond, Persephone Forster, Naomi Cooper, Sophie Fletcher Watson and Clementine Pickwick
Related item: The big issues facing Australian employers and their insurers in 2021
High Court clarifies the implied duty of mutual trust and confidence between employer and employee
The duty of mutual trust and confidence between employer and employee in Hong Kong (the Duty) has been formulated by the courts to mean that an employer shall not conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.
Lam Siu Wai v Equal Opportunities Commission (the Commission) [October 2021] (a case in which Kennedys acted for the Commission) clarified the nature and scope of the Duty. The key issue of the appeal was the interplay of the Duty and the Commission’s contractual right to terminate the claimant’s employment without cause. The Honourable Mr Justice Anthony Chan allowed the Commission’s appeal and set aside the Tribunal’s award.
This case reconfirms the employer’s right to dismiss an employee without cause in accordance with the contract. Practically speaking, in exercising such contractual right, the employer may be better off to stay silent as to the termination reason(s).
Practically speaking, in exercising such contractual right, the employer may be better off to stay silent as to the termination reason(s).
Contacts: Rudy Chung, Kevin Yam, Emily Duncan and Nigel Chan
Related item: High Court clarifies the implied duty of mutual trust and confidence between employer and employee
Australia
Hong Kong
United Kingdom