Welcome to November’s edition of Worked Up. With us all looking forward to another period of bad hair days and toilet roll shortages, what better time to take stock of the current employment law landscape and the government’s latest attempts to guide us through it.

In this edition, we report on the (official) return of furlough and the delayed introduction of furlough’s estranged cousin, the Job Support Scheme (due to be available in open or closed varieties). We also provide an update on the Job Retention Scheme bonus (which will presumably now be far more popular than perhaps originally envisaged) and highlight new guidance on handling redundancies and subject access requests. You can also look forward to our summary of a recent case regarding a practical joke which unfortunately went a little wrong.

If you’d like to discuss any of the below updates, please do get in touch.

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The return of the furlough

The JRS Bonus – perhaps it will be relevant after all

Redundancies in light of government support

Subject Access Requests… still as painful as ever?

Why practical jokes are often not a good idea in the workplace…

It wasn’t long ago that we were confidently saying that the Coronavirus Job Retention Scheme (“JRS”) was being wound down for good, never to be seen again. How times have changed. In conjunction with the recently announced national ‘November lockdown’, the government has decided to postpone the launch of the Job Support Scheme (“JSS”) and extend the JRS for a further month until December.

We’re waiting for full details on how the extended JRS will operate but in short, it seems as if it will be pretty much as it was back in August (so in other words, more generous than the scheme was in September or October). This basically means:

• Employers will be able to claim 80% of wages (subject to a cap of £2,500 per month) for furloughed workers and employers will only be required to pay employer National Insurance Contributions and pension contributions for the hours the worker doesn’t work;
• Employers can choose to top up wages if they wish to do so;
• Workers can be flexibly furloughed;
• An employer does not need to have previously used the scheme and a worker does not need to have previously been furloughed; and
• To be eligible, workers must have been included on an RTI submission to HMRC on or before 30 October 2020;

It’s not particularly clear why the Government decided to extend the JRS rather than relying on the JSS (which was already designed to deal with business closures) but, given the increased Government contributions under the JRS, this is good news for both employers and workers (perhaps less so for the Chancellor’s budget sheet).

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With many saying that 2020 seems like the longest year ever, employers hoping to claim the £1,000 Job Retention Scheme Bonus (“JRS Bonus”) still have a long wait ahead of them. However, as mentioned above, with furlough back and the JSS to look forward to, more jobs will hopefully be protected over the coming months which means the JRS Bonus could be much more relevant to businesses than initially thought.

Perhaps with this in mind, the Government has now published new guidance which confirms that employers will be able to apply for the bonus between 15 February 2021 and 31 March 2021. As a reminder, the bonus can be claimed in respect of individuals who have previously been furloughed provided that they:

• are continuously employed (and not under notice) from the end of their furlough leave until 31 January 2021; and
• are paid a minimum of £1,560 (gross) between 6 November 2020 and 5 February 2021, provided that at least one payment of taxable earnings is made in each of the relevant tax months.

It is not yet clear how the extension to the JRS will affect the JRS Bonus and whether employers will be able to claim the JRS Bonus for workers furloughed for the first time in November. The guidance was due to be updated again in January with details on how to access the online claim service but we would hope that it will be reviewed over the coming weeks so that this point can be clarified.

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ACAS, the Confederation of British Industry and the Trades Union Congress have published a joint statement regarding how best to handle redundancies. The statement urges employers to “exhaust all possible alternatives” before making redundancies and sets out key principles that employers should follow if they do need to make redundancies.

While employers should always consider alternatives before making redundancies, such considerations do not usually need to factor in available Government support, such as the JRS and the JSS. So, do these schemes mean that you can’t make redundancies?

In short, no. While it would be sensible for most employers to consider whether they may be able to benefit from the schemes, there is nothing obliging an employer to make use of the schemes. A worker also clearly does not have a “right” to be furloughed or a right to be placed on the JSS. However, it would seem that in respect of the JSS in particular, employees that participate in the scheme may receive some additional protection from dismissal or redundancy (we still await further guidance on exactly how this will work).

The joint statement is available here.

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Are there many things more horrifying than the dreaded receipt of a data subject access request (“DSAR”)? Well, perhaps there are, but there’s no denying the challenges and stress that such requests can sometimes cause. Thankfully, the ICO has recently published new guidance to help businesses tackle DSARs effectively and efficiently.

While the new guidance provides helpful clarification on some points, it unfortunately doesn’t really do much to ease the burden on employers who are having to spend significant time and resources responding to DSARs (which are now commonplace in most employment disputes).

Three key points were addressed in the guidance:

1. Stopping the clock for clarification – the guidance confirms that if you process a large amount of information about an individual and genuinely require clarification in order to respond to their DSAR, you can ask the individual to provide specific information before you respond to the request. The time limit for your response (usually within one month) will be paused until you receive the necessary clarification.
2. Manifestly excessive requests – the guidance confirms that you can refuse to comply with a DSAR if it is manifestly excessive. It explains that a request will be manifestly excessive if it is clearly or obviously unreasonable and it states that this judgment should be based on whether the request is proportionate when balanced with the burden or costs involved in dealing with the request.
3. Charging a fee – the guidance explains that in circumstances where you are permitted to charge a fee (e.g. where the request is manifestly unfounded or excessive or if an individual requests further copies of their data following a request), a reasonable fee may include the costs of photocopying, printing, postage, equipment, supplies and staff time.

If you are unfortunate enough to receive a vexatious DSAR request, it is therefore advisable to consider: 1) whether you in fact have to comply with the request; and 2) if you do have to comply with the request, whether you require clarification before responding and/or whether it may be reasonable to charge a fee.

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Chell v Tarmac Cement and Lime Ltd [2020] EWHC 2613 (QB)

In this case, the High Court held that an employer was not vicariously or directly liable for a practical joke played by an employee which resulted in a contractor suffering hearing loss and tinnitus.

The ‘joke’ involved the employee hitting two pellet targets he had brought to work with a hammer taken from the work site, which caused a loud explosion next to the contractor (we think perhaps you had to be there…). The High Court judge noted that he had significant sympathy for the contractor (the Claimant in the case) and was clearly very unimpressed by the joke, stating “the practical joke must be the lowest form of humour. It is seldom funny, it is often a form of bullying and it has the capacity, as in the present case, to go seriously wrong.”

Despite this, he upheld the decision of the County Court that the employer could not be held vicariously or directly liable as: 1) there was not a sufficient connection between the employment relationship and the joke for the employer to be held vicariously liable; and 2) it was not reasonable to expect the employer to have foreseen the incident.

In making his decision, the High Court judge referred to the landmark decision on vicarious liability in the Morrisons case, in which Morrisons was held not to be liable for a data breached caused by a “rogue” employee. You can access our briefing note on the Morrisons judgment here.

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