Furlough – Seán Crossan's Scots Law

The Coronavirus Paydemic

https://news.sky.com/story/clap-for-carers-pm-joins-applause-for-healthcare-workers-as-he-continues-coronavirus-recovery-11974399

By Shannon Clark, Robbie Graham, Salwa Ilahi, Jenna Murray and Ethan Robinson (Editor: SJ Crossan)

Introduction

The above picture shows people in Britain standing on their street participating in the ‘clap for carers’ which now takes place every Thursday.

In the past, seeing all of your neighbours standing clapping and banging pots and pans together every Thursday at 8pm would seem a bit odd. However, this is now the norm and we will go onto explain how this has become the case.

On the 31 December 2019, the Wuhan Municipal Health Commission announced reported a number of cases of pneumonia in the Wuhan, Hubei Provence (WHO, 2020) and so began a Worldwide pandemic. The cause of these cases of pneumonia were eventually found to be caused by a virus called the Coronavirus. The virus has been found to cause an incredibly infectious respiratory disease, also known as COVID-19, which has sent many businesses and economies spiralling into free fall as they come to terms with the impact of the disease.

It has changed the way that almost everyone in society has to go about their daily lives as they have now been advised not to leave their home unless absolutely necessary and if they do need to go out, stay 2 metres apart from everyone at all times. For many it has also brought about change to their working lives as a vast amount of workers are not either having their contracts terminated, working from home or been placed on a fairly new concept in UK Employment Law known as Furlough.

In this article, we will go onto explain the main changes that have taken place as a result of the coronavirus pandemic and how they have impacted on workers, businesses and employment law in the United Kingdom.

Coronavirus update

At the time of writing this article (April 2020), the number of confirmed cases of the coronavirus in the UK was approximately 162,000. While this number is not substantial in terms of the total number of workers in the UK, it has led to around 80% of the workforce in the UK (and across the world) having their jobs impacted by the pandemic. This is due to the fact that many countries, including the UK, have ordered non-essential shops and businesses, for example clothes retailers, pubs and restaurants, to close and stay closed until it is safe for them to re-open. As a result of this, there have been over 1.2 million new unemployment benefit claims in the UK since the beginning of the outbreak (Hope, 2020) and it is expected that around 8 million people will apply to the governments furlough schemefor funding (Osborne & Kellowe, 2020), which we will discuss later in this article.

Sick Pay

In the Employment Rights Act 1996, Section 230 (1) defines an employee as an individual who has a contract of service. As a result of this status, such individuals are entitled to employment protection and benefits such as the right to receive either contractual sick pay or statutory sick pay (Crossan, 2017). In relation to COVID 19, those entitled to contractual sick pay must follow their workplace’s usual protocol when reporting that they must self-isolate. Employees can self-certify for the first 7 days of absence however, they are required to get a note from NHS 111 or a doctor if they must isolate for more than 7 days (ACAS, 2020).

Typically, those described as workers or individuals on a contract for services are not entitled to the same level of protection. This leaves them unable to claim any form of sick pay. Due to the recent outbreak of COVID-19, the inability to claim sick pay could be argued to be one of the main causes of stress and financial worry for individuals due to the uncertainty and lack of information on how this virus is spread. As noted by ACAS (2020), this worry could now be said to be somewhat alleviated, as of 13 March 2020, the UK Government decided that both employees and workers must receive statutory sick pay from their first day of self-isolation if:

They have coronavirus
They have symptoms of coronavirus
Someone they live with has coronavirus symptoms
They have been informed to by NHS 111 or a doctor

Despite this, it should be noted that this change in policy will not be extended to the self-employed. Furthermore, for employees, contractual sick pay is often much more generous than statutory sick pay and it would therefore be beneficial for employees (if able) to claim this through their place of work instead of opting for SSP. In order to be eligible to receive statutory sick pay, employees must be earning at least £120 per week (BBC, 2020) and, as highlighted by the Office for National Statistics, the annual survey of hours and earnings has shown that around 1,766,000 individuals in the UK make less than £120 per week (ONS, 2020). This means that many workers will simply fail to qualify for SSP – such as those on zero hours contracts as they are unable to accrue enough hours; as well as over half of workers aged 65 and above. This leaves such individuals vulnerable to stress and money worries and may even encourage those suffering from viral symptoms and who are considered ‘key workers’ to attend work in order to make ends meet. This is particularly alarming as those aged 65 and above are more susceptible to infection from covid-19 (Hunt, 2020).

Prior to lockdown in March 2020, Gregg’s, the UK high street bakery retailer, unlike many other big businesses, announced that they would pay all staff contractual sick pay if they were required to self-isolate due to suffering Coronavirus symptoms (BBC, 2020). This approach is in huge contrast to the likes of JD Wetherspoon, which prior to quarantine, announced that all of its 43,000 staff would be subject to regular statutory sick pay rules if they had isolate in order to prevent the spread of Covid-19. This meant that not all Wetherspoons’ staff would be entitled to SSP and those that do qualify would only be paid after four or more days absence in a row which would have meant being entitled to receive less than £100 per week (Webber, 2020).

Furloughing

With the toll of the coronavirus pandemic and the lockdown that has ensued, it has left many individuals unable to work due to the variety of ways that they can be affected by the virus. It is essential that these workers are still able to receive some sort of wage to support them during these difficult times. This is where the furlough scheme can assist those who cannot do their jobs. It is a “granted leave of absence” to enable the employment of these individuals to continue despite the current circumstances (Hodgkin, 2020). Lawrie (2020) explains the way in which the furlough scheme works; meaning that an employer can claim 80% of an employee’s wages from the government up to a limit of £2,500 and the company is not under any obligation to fulfil the other 20% of the wage.

This provides a sense of security for these employees as they are reassured that their job is safe and that they can still receive some financial protection if they have been affected by the virus personally or if their employer is unable to provide them with work during these uncertain times.

However, the furlough scheme, which came into effect on 1 March 2020, is only a temporary measure with an initial duration of 4 months. An extension of this can be granted (only if necessary) and the minimum furlough period that an employee is to be placed on is 3 weeks in a row – although they may be entitled to be furloughed more than once (HM Revenue & Customs, 2020).

It is important to note that, when an employee is on furlough, they are not to perform work for their employer and after furlough has ended, the employer is not obliged to retain on the employee, raising the possibility of redundancy (Lawrie, 2020).

The opportunity to benefit from furlough applies to individuals regardless of whether they hold full time/permanent status or not, and this extends to apprentices, workers, individuals on zero hours contracts, agency workers and temporary employees (ACAS, 2020). The way in which a furlough agreement is made is by the employer approaching the the employee or worker for permission – unless there is a lay-off clause included in the contract. The affected employee/worker would then be required to sign a written agreement to this effect. As the West Cheshire & North Wales Chamber of Commerce (2020) explains that failure to secure an employee’s consent to furlough could lead to claims of a contractual breach or constructive unfair dismissal, which is not an ideal position for either party to be in.

“Two-thirds of British businesses have already used the government’s scheme since it was announced last month” reported Bernal (2020) and a prominent example is British Airways, one of the UK’s biggest airlines. The airline worked with the Unite union to furlough 80% of its workforce, which is approximately 36,000 of its employees (Harding, 2020). This major decision applies to a range of their staff, including engineers and cabin crew, and was expected due to the inevitable effect that coronavirus has had on British Airways (Webber, 2020). Instead of being made redundant, the furlough scheme is a means of offering protection for an individual’s job and part of their income. Many workers and employees will surely be glad of the scheme’s existence.

Pay Rise

The UK National Minimum wage and National Living wage was set to increase by 6.2% for 2.8 million people on 1 April 2020 (with this being announced in December 2019). This would be give full time workers an annual pay rise as the National Living wage will rise from £8.20 to £8.72. This would apply to those aged 25 and above. The increase of the minimum wage for 21-24 year olds has risen from £7.70 to £8.20; 18-20 year olds will see the rate rise from £6.15 to £6.45; and for 16-17 year olds there was to be a rise from £4.35 to £4.55. (UK Government, 2020).

However there where discussions that this wage increase may be postponed but this was rejected even though this new living wage will not effect furlough workers as they won’t see the impacts of this on their wages for quite some time. The businesses that haven’t furloughed their workers are being begged to continue in paying the ‘real living wage’ as it is essential to these workers risking their health and safety to come to work. Many companies have begged to have the rise delayed and postponed due to the fact that the coronavirus pandemic which is currently taking place has caused huge financial impact across the UK effecting the economy with smaller businesses suffering the most. It is understandable as to why the government and businesses would wish to delay the increase as this non-essential businesses during the coronavirus have closed e.g. restraints and pubs, thus these business have no money coming in to pay their staff the new minimum wage no less the one that we currently had. This new wage could mean that funds and savings in the business could run dry as they pay their staff furlough wages which could result in these businesses to suffer even with permanent closures of businesses across the UK. But to the millions of key workers whom are working all over Britain giving essential help during the Covid-19 pandemic are still on their living wages and this rise is essential to keep them afloat. (Sheldon,2020).

Amey plc refuses to offer higher sick pay to workers amid the Covid-19 pandemic

The previous living wage was just not enough for people to live on which is the reason that this increase was so important, as it helped make sure that the working class have a good standard of living, but most would say that it is still not good enough and many will not see the benefits until the pandemic is over as furloughed staff are one due 80% of their salary meaning that in the current situation their is even more stress, this can be said as not only are key workers not getting the wage that they deserve for their hard work that is keeping the UK afloat, but many working class citizens are left nothing near the end of
the month and this also goes for essential workers, such as NHS staff such as Hakeem Lawal who is a father of three started working as a cleaner for the NHS and has been working there since 2018 with no sick pay provided by his employer , he says “it was very hard because at the end of the month – more or less a week before the end of each month – you are waiting with nothing in your account at all” as well as the fact that the chemicals that he used to clean the facilities where very dangerous for his lungs, meaning that not only was he struggling financially to support his kids but he is aware that the job he is doing is harming himself and he has no safety net if these chemicals where to make him sick and have him off work (BBC News, 2020). It is also going to be more of a struggle for those working at home as it has meant that energy bills are rising as electricity is on far more often as people aren’t turning it off when going to work with a prediction from ‘Energyhelpline’ reckoning that household bills are likely going to rise by 30%.(Jones,2020). The living wage rise would have been greatly appreciated for families that will be struggling financially through the pandemic and self isolation nut if there are only getting 80% of their salary it could result in those who are already struggling to be put in an even worse situation with debt.

On 24 March 2020, during a trade union negotiation surrounding the topic of sick pay for refuse collectors (waste collectors), the head of Human resources at Amey plc (a services company that focuses on improving and maintaining the roads, railways and airports amongst other things) said that the company believed the Coronavirus is “less severe” than normal influenza and because of this they would not be providing their workers with unique sickness benefits (additional sick pay) if they choose to stay at home during the pandemic (Booth, 2020). The GMB trade union, who were arguing in favour of better sick pay for refuse collectors at the negotiation were shocked by Ameys comments regarding the coronavirus, they argued that it is unfair for these key workers to only be offered the minimum amount of sick pay (£94 per week).

Following the GMB’s defence of the waste collectors, Simon Schumann-Davies (the head of human resources for Amey) claimed that Coronavirus was significantly less severe than other diseases and stated that there would be no change in the sick pay that they offer to their workers: “we are applying exactly the same rules regarding sickness benefit as we would for any other condition in that we will be paying contractual entitlement.” (Davies, 2020)

In response to this Keith Williams from the GMB argued that Amey are forcing their workers to put their health at risk as they would financially suffer by choosing not to come to work and only receive statutory sick pay.

Following the barrage of criticism that Amey received for their actions towards their workers, a company spokesperson stated (on 31 March) that workers who decide to self-isolate will receive full pay. Shortly prior to this announcement, Amey had issued a statement clarifying that the opinions of Simon Schumann-Davies did not reflect its position on the pandemic. (Sumner, 2020). With the increasing severity of this situation it was inevitable that any decision by the company not to allow sick pay for workers would provoke an intense, public backlash and this, undoubtedly, forced them to change their policy.

Conclusion

The Covid-19 pandemic has had a massive impact on almost everyone – and will continue to do so for the foreseeable future. It has changed the way that workers in the UK go about their daily home and work life and has brought about massive amounts of uncertainty. However, some of that uncertainty may have been removed due to the factors explained in this article, such as changes to SSP and the UK government’s furloughing scheme as employees and workers can be, somewhat, helped financially during these unprecedented and difficult times.

References

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BBC, 2020. Coronavirus: Greggs ‘would pay staff who need to self-isolate’. [Online]. Available at: https://www.bbc.co.uk/news/business-51718074
[Accessed 27 April 2020].

BBC, 2020. Coronavirus: Wages, sick pay and time off explained. [Online]. Available at: https://www.bbc.co.uk/news/business-51628524
[Accessed 26 April 2020]

Booth, R. (2020). UK firm won’t pay higher sick pay as Covid-19 ‘less severe than flu. Available: https://www.theguardian.com/world/2020/mar/30/uk-firm-wont-pay-higher-sick-pay-as-covid-19-less-severe-than-flu. Last accessed 28th Apr 2020.

Crossan, S. J., 2017. Scots Law Theory and Practice. 3rd ed. Glasgow: Hodder Gibson.

Harding, N., 2020. British Airways Set To Furlough 36,000 Staff. [Online]
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HM Revenue & Customs, 2020. Check if you can claim for your employees’ wages through the Coronavirus Job Retention Scheme. [Online]
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[Accessed 28 April 2020].

Hodgkin, E., 2020. Martin Lewis explains meaning of furlough, how much pay it covers and if you are entitled. [Online]
Available at: https://www.express.co.uk/finance/personalfinance/1260699/martin-lewis-furlough-meaning-uk-pay-coronavirus
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Hunt, M., 2020. How much statutory sick pay can I get if coronavirus stops me working?. [Online]
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Jones, R., 2020. Lockdown Means Energy Bills Will Rise. Here’s How To Keep Costs Down. [online] the Guardian.
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[Accessed 26 April 2020].

Osborne, H. & Kollewe, J., 2020. 140,000 UK companies apply for coronavirus job furlough scheme. [Online]
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[Accessed 29 04 2020].

Sheldon, J., 2020. Minimum Wage & National Living Wage WILL Rise Says Government – Will You Get The Pay Rise?.
[online] Express.co.uk. Available at: <https://www.express.co.uk/finance/ personalfinance/1261454/minimum-wage-2020-uk-national-living-wage-rates-april- increase-coronavirus>
[Accessed 28 April 2020].

Sumner, B. (2020). Coronavirus: Amey agrees to full pay for self-isolating workers. Available: https://unitetheunion.org/news-events/news/2020/march/coronavirus-amey-agrees-to-full-pay-for-self-isolating-workers/. Last accessed 28th Apr 2020.

UK Government (2020) Government Announces Pay Rise For 2.8 Million People. [online] Available at: <https://www.gov.uk/government/news/government-
announces-pay-rise-for-28-million-people> [Accessed 28 April 2020].

Webber, A., 2020. Furlough in action: BDO, Renault, Paddy Power, Hogan Lovells and more. [Online]
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[Accessed 28 April 2020].

Webber, A., 2020. Wetherspoon treating coronavirus ‘like any other illness’. [Online]
Available at: https://www.personneltoday.com/hr/covid-19-wetherspoon-treating-coronavirus-like-any-other-illness/
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WHO, 2020. WHO Timeline – COVID-19. [Online]
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[Accessed 27 04 2020].

Copyright Shannon Clark, Robbie Graham, Salwa Ilahi, Jenna Murray and Ethan Robinson, 28 April 2020.

The impact of UK Law on sport

By Stephanie Crainey, Ross Codona and Briege Elder (Editor: SJ Crossan)

Introduction

Sport is often viewed as a special entity whereby the law and legal systems do not directly interfere with its rules (Laver, 2020). Therefore, the rules under which a particular sport is played are not an area where the legal system will usually interfere.

The government in the United Kingdom has adopted this non-interventionist approach to sport, meaning there is no general law for sport. Instead regulation is left to the National Governing Bodies (NBGs) (Bennett, 2019).

However, with the turn of a new decade and the economic crash caused by the COVID-19 pandemic, some major issues in sports law have arisen, including whether an athlete is an employee or worker, the terms and conditions governing athletes and their use of social media platforms. Can these issues possibly be addressed, never mind resolved?

Is an Athlete an employee or a worker?

Above British cyclist, Jess Varnish (right) who is currently involved in legal action against British Cycling and UK Sport over her employment status

The question of an individual’s employment status is always up for debate no matter which profession we are discussing. The focus of this question, in recent times, is mainly focused around the gig economy. This type of work might involve individuals providing a service e.g taxi driver (Uber) or food delivery (Nicholson, 2019).

However, due to the nature of the work (short-term and very insecure), gig economy workers are not usually granted the same rights and protection as employees under UK employment law.

Attempts have now been made to address this situation: in 2017, Matthew Taylor, Chief Executive of the Royal Society of Arts and former Downing Street adviser, was commissioned by the UK Government to conduct an independent review on modern working practices; and in the US State of California, Assembly Bill 5 was passed into law in 2020 giving gig economy workers employment status. The Taylor Review looked at the growth of the UK gig economy and considered its implications for worker rights and responsibilities (Nicholson, 2019). Despite the widespread attention that the Californian Assembly Bill 5 and the Taylor report both received, there is still not sufficient clarity surrounding the status of workers who provide services in the gig economy.

In 2018 the issue of employment status and sport received a lot of media attention when former Great Britain cyclist, Jessica Varnish argued that she ‘should be considered an employee of British Cycling or of the funding agency, UK Sport.’(McGowan, 2019). The world silver medallist set out to prove she was, in fact, an employee in order to enable her to sue British Cycling and UK Sport for both wrongful dismissal and sexual discrimination, after she was dropped by team GB before the 2016 Olympics. Shane Sutton, former British Cycling director, was found to have used sexist language toward Varnish, although he denied these claims. Sutton later left his post with British Cycling.

Unfortunately, for Varnish, she lost her claim for wrongful dismissal at the Employment Tribunal in early 2019. Put simply, the Tribunal held that she was not an employee of either British Cycling or UK Sport and, therefore, she was not entitled to bring such a claim. Varnish has now appealed to the Employment Appeal Tribunal.

The appeal hearing could either overturn the decision of the Tribunal or order a new hearing to take place. Varnish stated:

“I want to give others the opportunity to hold to account employees of governing bodies, who they interact with on a daily basis, and have significant control over their careers and opportunities.”

She added:

“I continue to think it’s unfair that athletes still have no structured means to do this, and I hope this appeal will be the first step towards affecting change, and bring about a fairer, more modern and high performance system in the UK where athlete welfare is not just a sound bite, but something that we all believe in.” (McGowan, 2019).

In response to her statement, a British Cycling spokesmen added:

“We very much regret that Jess has been advised to pursue the route of an employment tribunal when other avenues were available to her….. We will continue to represent what we believe are the best interests of every rider currently supported through the high performance system, and all those in our sport who hope to one day compete at an Olympics or Paralympics.” (McGowan, 2019).

Employment rights: employees vs workers

Determining the question of Jessica’s Varnish’s employment status (employee or worker) is vital to this case as it will decide what employee rights she is entitled to (if any).

True, most workers are protected against unlawful discrimination in terms of the Equality Act 2010, and harassment and victimisation in relation to ‘whistle-blowing’ actions (reporting of wrong doing in the work place). However, you must be an employee in order to be protected from unfair and wrongful dismissal (CIPD, 2020)

Section 230 of the Employment Rights act 1996 defines an employee as “an individual who has entered into or works under a contract of employment.”

Over many years, UK courts and Tribunals have developed specific tests that must be fulfilled in order to assess an individual’s employment status (Crossan, 2017). These include:

Mutuality of obligation
The control test
The economic reality test
The organisation or integration test

The definition of a worker (which is a wider concept than an employee) can also be found in different pieces of legislation e.g. the National Minimum Wage Act 1998 and the Working Times Regulations 1998. The Chartered Institute of Personnel Development (CIPD) defines a worker as:

‘an individual who undertakes to do or perform personally any work or service for another party, whether under a contract of employment or any other contract.’(CIPD, 2020).

Although the CIPD definition is based on the Employment Rights Act 1996, the definition of worker varies from statute to statute.

As in other parts of the UK employment market, the employment status of athletes will often be a contested concept, meaning that the various tests listed above will have to be deployed by the courts and Tribunals to resolve the issue. It is notable that a large part of Jessica Varnish’s original Tribunal action focused on the control test i.e. she had to follow the training regime laid down by British Cycling in order to be eligible for continued funding from UK Sport.

Athletes in the world of social media

Social media is a great way for an athlete to connect with their existing fans. As well as this, it also allows you, the individual fan to connect with others whom you have never met, such as other fans of your team/sport, or supporters from your hometown etc. Athletes, amateur and elite, can have their use of social media restricted and regulated through provisions contained in Standard Player Contracts.

This is completely understandable from the point of a view of an employer or sponsor because an athlete’s online activities/posts may bring about critical, reputational harm and financial loss to partnered clubs and associations. Athletes’ contracts may contain certain restrictions on what they can and can’t post on social media. However, these restrictions may or will vary from specific social media targeted polices (“blackout” before during and after games), to more general restrictions which cover wider aspects of an athlete’s behaviour (Social Media In Sport: Top Tips, 2020).

Clubs and organisation are urged routinely to remind athletes with regard to what is appropriate and inappropriate online behaviour. This can incorporate a reminder to athletes that, while they are not participating in the activity, they still have commitments to the employer and sponsors and are expected to stick to an agreed code of conduct – just as though they were working. Athletes may have both a personal and professional social media account, but the restrictions and requirements that they are expected to adhere do not change.

Social media allows athletes to secure sponsorship. Platforms such as Facebook, Instagram and Twitter are just some of the ways to reach thousands of people who you would not normally be able to target.

In the UK, athletes and brands must take care when posting promotions and sponsored posts. This is regulated by the Advertising Standards Authority and the Committee of Advertising Practice Codes. The CAP code requires that all advertising is easily identifiable.

In 2012, professionalfootballers, Wayne Rooney and Jack Wilshire broke this requirement after they posted a tweet under Nikes campaign slogan ‘#makeitcount’. The two athletes failed to make it clear that the tweets were in fact from Nike’s marketing communications. For an athlete or any individual using social media for promotional purposes, they must add ‘#spon’ or ‘#ad’ to a post, something which both Rooney and Wilshire failed to do. This helps to make the advertising easily identifiable and prevents anyone from failing to meet the requirements (Social Media In Sport: Top Tips, 2020).

A delicate balancing act

Guidelines for athletes to follow for social media may vary from each profession. It’s no surprise that what Athletes post can be seen potentially by millions of people around the world. There is a need to ensure that, before posting any content, they are happy with what they are about to upload. Are they happy for the post to be linked back to them and be easily accessible forever? Would they be happy if the post was to end up appearing somewhere which was not intended e.g TV, gossip magazines/blogs? It can be a very delicate balancing act.

It is important to respect yourself, your sport and the club/organisation of which you are part. Anyone, especially a public figure (such as athletes), must ask themselves, how might this be portrayed or received by my followers? Will this reflect negatively upon their “role model” status? Could my post effect sponsorship for them or the sport?

These are just a few guidelines that Scottish athletes have to consider Athletes must also ensure that the amount of time they are spending on social media is not affecting their performance. All of these factors are essential when considering what content to upload and share with your followers on social media. Ultimately it’s all about having respect for your audience and yourself.

Maternal/paternal rights for athletes

Many employees receive family-friends benefits which include parental leave or childcare. Diageo, for example, is a UK beverage company which recently introduced female employees to be offered a minimum of 26 weeks fully paid maternity leave under a new global policy (Rennie and Beach, 2020). The vast majority of employees, by contrast will receive just the statutory minimum maternity pay.

Maternity rights

Sporting bodies are generally falling behind in creating Family-Friendly policies which is inconsistent with modern attitudes towards athletes’ rights. Many British athletes e.g Jessica Ennis-Hill and Jo Pavey are parents, yet have still made a successful return to sport.

UK Sport Guidance states thatif a female athlete becomes pregnant they can continue to receive World Class Programme funding and support during pregnancy and after child birth. She (the mother) and her performance director are expected to agree a new appropriate training and competition programme that would map the athlete’s return.

Three months after childbirth, the sports performance director is encouraged to undertake a review with the athlete in order to assess them on her commitment to the agreed plan. By the end of the three months, if the athlete has made the decision that they in fact do not want to return to the sport, then they would be given a notice period depending on the length of time that they had been involved on the World Class Programme before they were then removed from funding (Falkingham, 2020).

Paternity rights

In 2019, the England Cricket team had its biannual tussle with rivals Australia. Batsman, Joe Denly, a new recruit to the England ranks, left the field at the end of the first 5 days of the final Test Match at the Oval in London. The athlete drove 60 miles to be with his wife for the birth of their daughter. The following day, Denly was back on the field facing the Australian bowlers. Joe then went on to create the highest score to date, only narrowly missing out on a Test century (Jackson and Brenner, 2018 and Anderson et al, 2019).

Denly’s story is a happier example than the experience of former Manchester United’s French star, Anthony Martial. The star was fined £180,000 and shamed publicly in 2018 for missing a week of training after flying to be his wife in order to support her through a difficult labour and welcome their son into the world. Two of the days in which he was away were dedicated to travel alone (Jackson and Brenner, 2018 and Anderson et al, 2019).

Sporting success is valued more than family. The famous one liner,“winners never quit and quitters never win” is one which athletes find so important. So much so that, in the 1990s, the President of Oakland athletics, Billy Bean missed his partner’s funeral in order to continue playing a game (Anderson et al, 2019).

These types of incidents sit completely at odds with decent treatment of employees. Organisations are increasing the length of time woman get full maternity pay. A study by the University of Birmingham found that only 9,200 new parents (just over 1% of individuals entitled) shared parental leave in 2017-18. However that rose to 10,700 in the financial year 2018-19. Companies now seem more willing to offer other options to just maternity leave, in the hope of recruiting and retaining high calibre employees (Birkett and Forbes, 2018).

How has Coronavirus has affected sport?

Law in sport is no different to ordinary law in that sporting organisations and sponsors have to respect and obey the rules. This has been particularly highlighted during the current COVID-19 pandemic crisis.

Coronavirus has caused major sports leagues and events around the world to cease current activities or cancel upcoming events due to strict lockdown rules (The Independent, 2020). COVID-19 has forced governing bodies to try to intervene and protect institutions within their area, for example, FIFA (the governing body of football) has set up a £121 million relief fund for its 211 national associations (Keegan, 2020)

The lockdown laws which come as part of the pandemic haven’t just affected international bodies but also had an affect domestically. In Football, national leagues such as the Premier League in England have come to a halt until further notice ,whilst some other leagues around Europe declared their seasons over or null and void as they have in Ligue 1 (France) and the Eredivisie (The Netherlands).

The halting of sporting activities isn’t the only implication of this crisis: it has had a major impact on the employment of all those involved in sport directly or indirectly.

In the UK, furloughing has been introduced to try and help businesses to pay their employees. The furlough scheme means that the UK Government pays 80% of employees’ wages up to a ceiling of £2500 a month (HMRC, 2020).

This causes issues, however, for many professional, sporting institutions, as many athletes are earning far above £2500 a month. Therefore such individuals are ineligible to be furloughed placing sporting institutions under serious financial strain should players refuse to take wage cuts. FC Sion, a football team in Switzerland, were forced to terminate the contracts of 9 footballers after they refused to take pay cuts (BBC, 2020b)

In other instances, the furlough scheme has been supported and it has had the desired effect. The McLaren Formula 1 team main drivers Carlos Sainz and Lando Norris have taken pay cuts in order to support their fellow employees on the team (Galloway, 2020)

Added to this, the UK Health Protection Regulations 2020 have prevented sports such as Formula 1, Football, Boxing or Rugby being performed because of current social distancing restrictions. Whilst this has had a detrimental effect on the sporting world as a whole, it has provided a boost in less traditional fields. E-sports have increased in prominence since the cancellation/postponement of traditional sporting events. Formula 1, in particular, has capitalised on the potential E-sports platform. Formula 1 has been hosting ‘virtual’ Grand Prixs where a mixture of current drivers, figures in the sport, other sportsmen or celebrities race against each other by using the official Formula 1 video game (Dixon, 2020).

The reaction has been positive as a reported 3.2 million viewers witnessed the inaugural virtual Grand Prix, the stature of many of those involved is testament to its success as prominent figures in world sport such as Thibaut Courtois, Ciro Immobile and Sir Chris Hoy have all competed in the virtual Grand Prix (Dixon, 2020)

The cancellation of major sporting matches and events is causing massive implications financially and logistically. In Rugby there had been suggestions that games in France could be played behind closed doors should the league be started again. Club owners highlighted objections to this, in particular, the owner of ‘Stade Toulouse’ would potentially lose millions of Euros before the end of the season should games be played behind closed doors (Ultimate Rugby, 2020).

The UK Health Protection Regulations 2020 have caused major financial implications to sporting institutions across the country. Leeds United, a football club competing in the English Championship, is set to miss out on lucrative financial benefits of promotion to the Premier League. Being promoted to the Premier League guarantees Clubs a large sum of prize money worth millions. However, the following season they spend in the premier league promises them close to £100 million even if they finish last place (Winters, 2020). This level of money could help Leeds United recover from its financial deficit. At the time of writing, all games have been postponed for the foreseeable future meaning that there is a lack of certainty as to what happens next.

Logistically on a global scale COVID-19 has caused the disruption of massive global events that take years of organisation to have now been postponed. Although some of the postponements are only estimated to be a year, the cost can still be detrimental. Reports claim that a one year delay of the Olympics could result in £2.3 billion in further costs (Mail online, 2020).

Conclusion

COVID-19 has emphasised key aspects of employment law, even at an elite level in sport there is more protection being employee rather than being a worker or self-employed. Many members of clubs and teams in different sports have agreed pay cuts. However, they are still being paid. This situation isn’t the same for professional golf: players are registered as self-employed. Footballers are still being paid or have at least agreed a deferral of wages or a temporary pay cut, but nevertheless, their employment contract still protects them during this time of major uncertainty. Golfing stars such as Rory McIlroy and Tommy Fleetwood do not have this protection unlike football stars such as Harry Kane and Raheem Sterling.

It is clear that UK employment law needs to do more in determining an athlete’s employment status. The UK Government must also work harder to protect athletes and their rights. Due to the catastrophic pandemic, not only will sports organisations and clubs suffer but also their athletes. The only certainty in these most uncertain times is that Covid-19 is likely to generate a plethora of future legal disputes which will shape our legal landscape, especially in the world of sport, for some time to come.

References

Anderson, E., Parry, K.D., & Batten, J., 2019. With women’s sport leading the way, male athletes could benefit from family-friendly policies too. Available at: https://scroll.in/field/942000/with-womens-sport-leading-the-way-male-athletes-could-benefit-from-family-friendly-policies-too [Accessed 22 April 2020].

Anderson, E., Parry, K.D., & Batten, J., 2020. Sporting Dads: Male Athletes Need Family-Friendly Policies Too. [online] Available at: https://www.google.co.uk/amp/s/theconversation.com/amp/sporting-dads-maleathletes-need-family-friendly-policies-too-125514 [Accessed 25 April]

BBC Sport. 2020. Should Sports Do More To Help Female Athletes Feel ‘More Comfortable’ Having Children During Career?. [online] Available at: https://www.google.co.uk/amp/s/www.bbc.co.uk/sport/amp/48336819 [Accessed 25 April]

BBC, 2020a. Coronavirus: How The Virus Has Impacted Sporting Events Around The World. [online] Available at: <https://www.bbc.co.uk/sport/51605235> [Accessed 22 April 2020].

BBC, 2020b. FC Sion sack nine players for reportedly not taking pay cut because of coronavirus crisis. Available at: https://www.bbc.co.uk/sport/football/51980881 [Accessed 22 April 2020].

Bennett, M., 2019. Sports Law In The United Kingdom | Lexology. [online] Lexology.com. Available at: <https://www.lexology.com/library/detail.aspx?g=7cc100e9-382e-4013-b1a0-8499c6889c0e> [Accessed 22 April 2020].

Birkett, H and Forbes, S (2018). Shared Parental Leave: Why is take up so low and what can be done? (1). Available at: https://www.birmingham.ac.uk/Documents/college-social- sciences/business/research/wirc/spl-policy-brief.pdf [Accessed 22 April 2020].

Chartered Institute of Personnel Development, 2020. Employment Status Q&As. [online] Available at: <https://www.cipd.co.uk/knowledge/fundamentals/emp-law/employees/status-questions> [Accessed 26 April 2020].

Dixon, E., 2020. F1’S Inaugural Virtual Grand Prix Draws 3.2M Online Viewers. [online] Sportspromedia.com. Available at: <https://www.sportspromedia.com/news/f1-virtual-bahrain-grand-prix-online-viewers-streaming-esports-julian-tan> [Accessed 22 April 2020].

Galloway, J., 2020. Carlos Sainz, Lando Norris take pay cuts as some McLaren staff furloughed. [Sky News online] Available at: https://www.skysports.com/f1/news/12433/11967263/carlos-sainz-lando-norris-take-pay-cuts-as-some-mclaren-staff-furloughed [Accessed 22 April 2020].

The Independent, 2020. Sport-By-Sport Look At The Impact Of Coronavirus Around The World. [online] independent.co.uk. Available at: <https://www.independent.co.uk/sport/sport-football-basketball-rugby-olympics-cancelled-coronavirus-impact-around-the-world-a9398186.html> [Accessed 22 April 2020].

Jackson, J. and Brenner, S., 2018. Anthony Martial faces fine despite return to Manchester United training. [The Guardian online]. Available at: https://www.theguardian.com/football/2018/aug/01/manchester-uniteds-anthony-martial-to-return-to-training-after-birth-of-child [Accessed 22 April 2020]

Keegan, M., 2020. FIFA draw up plans for emergency relief fund as governing body looks to help cash-strapped football authorities facing ruin due to coronavirus pandemic [Mail online]. Available at: https://www.dailymail.co.uk/sport/sportsnews/article-8172853/FIFA-draw-plans-emergency-relief-fund-governing-body-looks-help-football-authorities.html [Accessed 22 April 2020].

Laver, N., 2020. Sport And The Law [online] Available at: <https://www.inbrief.co.uk/sports-law/sport-and-the-law/> [Accessed 22 April 2020].

Mail online, 2020. Tokyo Organisers Counting The Cost Of Postponement Of Olympic Games. [online] dailymail.com. Available at: <https://www.dailymail.co.uk/sport/sportsnews/article-8181433/Coronavirus-Tokyo-organisers-counting-cost-postponement-Olympic-Games.html> [Accessed 22 April 2020].

McGowan, A., 2019. Varnish Wins Right To Appeal Tribunal. [online] BBC Sport. Available at: <https://www.bbc.co.uk/sport/cycling/50825263> [Accessed 24 April 2020].

Nicholson, R., 2019. Are Professional Athletes Employees?. [online] Shepherd and Wedderburn. Available at: <https://shepwedd.com/knowledge/are-professional-athletes-employees> [Accessed 24 April 2020].

Rennie, J., Beach, N., 2020. Win-Win: A Progressive Approach To Maternity & Paternity Rights For Professional Athletes – Lawinsport. [online] Lawinsport.com. Available at: https://www.lawinsport.com/topics/item/win-win-a-progressive-approach-to-maternity-paternity-rights-for-professional-athletes [Accessed 25 April]

Scottish Athletics, 2020. [online] Available at: https://www.scottishathletics.org.uk/wpcontent/uploads/2014/04/SAL-Social-Media-Guidelines-191016.pdf [Accessed 23 April]

Talk Sport, 2018. The Money Each Premier League Club Earned From TV And Their Final Position. [online] Available at: <https://talksport.com/football/376346/how-much-money-each-premier-league-club-earned-tv-and-their-final-position-180518283150/> [Accessed 22 April 2020].

The National Law Review. 2020. Social Media In Sport: Top Tips. [online] Available at: https://www.google.co.uk/amp/s/www.natlawreview.com/article/social-media-sport-toptips%3famp [Accessed 23 April]

Trades Union Congress, 2020. Employment Status And Rights. [online] Available at: <https://www.tuc.org.uk/employment-status-and-rights> [Accessed 25 April 2020].

UK Health Protection Regulations 2020

Ultimate Rugby, 2020. Top 14 Owner Claims His Club Will Lose Millions If Games Are Played Behind Closed Doors. [online] Available at: <https://www.ultimaterugby.com/news/top-14-owner-claims-his-club-will-lose-millions-if-games-are-played-behind-closed-doors/625829> [Accessed 22 April 2020].

Winters, M., 2020. The colossal cost of cancellation: Leeds could lose £100m MINIMUM if promotion to Premier League is scrapped while National League leaders Barrow may miss out on £1m if the season is voided… the impact on lower leagues would be devastating [Mail online]. Available at: https://www.dailymail.co.uk/sport/sportsnews/article-8293009/Leeds-United-lose-100m-MINIMUM-promotion-Premier-League-scrapped.html [Accessed 22 April 2020].

Copyright Stephanie Crainey, Ross Codona and Briege Elder, 22 April 2020

Dismissal

By Helan Ali, Rebecca Brodie, Cameron Crossan, Jack Holland and Eve Richmond (Editor: SJ Crossan)

Introduction

Dismissal occurs where an employers terminates the contract of employment between themselves and the employee. There are several types of dismissal that can arise such as: fair, unfair, wrongful, summary and constructive.

Perhaps the most common mistake amongst members of the public concerning dismissal is the tendency to confuse wrongful and unfair dismissal: they are entirely separate (Crossan, 2017). An unfair dismissal is one which breaches or contravenes statute; whereas wrongful dismissal occurs when the contract of employment is breached.

In all dismissal claims, it is important to determine if the claimant is actually an employee. This status is outlined in S230 of the Employment Rights Act 1996 in that the individual in question must be employed under a contract of service.

Employment law – always a tricky area to navigate as a result of its sheer volume becomes particularly difficult when it comes to the area of dismissal – as there can be a delicacy when it comes to terminating the employee’s contract. If you look at recent media stories, there are several high profile dismissal cases such as former senior civil servant, Sir Philip Rutnam pursuing an unfair dismissal claim against UK Home Secretary, Priti Patel or the UK retailer, Asda (part of the Walmart group) forcing their employees to accept new contracts or to face dismissal.

Unfair dismissal

Fair dismissal occurs when there is a termination of the employment contract, but the employer has the right to act in this manner as per S98(2) of the Employment Rights Act 1996.

The employer may have fair grounds to dismiss an employee under grounds of capability where the employer genuinely does not believe the employee is able to carry out their role any longer. Such a dismissal can be seen in Taylor v Alidair [1978] IRLR 82 where a pilot was dismissed from his contract after he landed a plane negligently and there was serious danger to life and limb. The pilot’s subsequent dismissal was completely fair in the circumstances.

An employer may also have the grounds to dismiss an employee on the grounds of conduct. Generally, one act of gross misconduct could potentially result in an employee’s dismissal. However, employers must have clear guidelines and these must be adhered to, but it does not necessarily mean that in every situation the same same outcome i.e. that of dismissal be the end result. Employers are entitled to have recourse to what is known as a reasonable band of responses, which might include the following:

Verbal or written warnings
Demotion
Dismissal
Deduction in pay (if the contract so permits)

If the employer has acted reasonably when carrying out the dismissal of the employee, there can be no overturning of that decision by an Employment Tribunal. This is regardless of whether the Tribunal would have taken a more lenient approach i.e. a preference for a final written warning over dismissal (see Iceland Frozen Foods v Jones [1983] ICR 17).

Employees are not exempt from their employer’s code of conduct even when they leave the premises as their actions taken outside of work can still result in a dismissal. This can be seen in McLean v McLane Ltd EAT 682/96 where an employee was drunk and disorderly outside working hours. He was also found to in possession of cannabis (a Class C drug in the UK). This information was released to the media which reported the story and, as a result, the employee was dismissed. This action by the employer was deemed fair by the Employment Tribunal.

Not all employees are fairly dismissed and the actions of the employer might mean that have been unfairly dismissed. To qualify for employment rights regarding unfair dismissal, an employee must normally have a minimum of 2 years’ continuous service (as per the Employment Rights Act 1996), but there are numerous exceptions e.g. discrimination, health and safety and whistle-blowing dismissals.

Employers can, admittedly, find a way around the 2 year continuous service period by employing someone on short-term contracts, thus ensuring that the minimum qualifying period is never met and the employee has not acquired any rights in respect of dismissal.

In some employment roles it is not possible to be unfairly dismissed due to the nature of the role e.g. UK armed forces and/or police service staff. Employees have the right be accompanied to a dismissal meeting if they choose to do so, they can bring a fellow employee or trade union official. Further details on this can be found under S10 of the Employment Relations Act 1999. Employers should adhere to their company guidelines and follow procedural fairness when disciplining employees – especially if dismissal is an option they are considering (as demonstrated in British Homes Stores Ltd v Burchell [1978] IRLR 379).

Wrongful dismissal

Moving on to the issue of wrongful dismissal, where the contract is breached due to the dismissal procedure. The most common example is the employee does not receive the requisite notice period from the employer. In this instance the employee would not require two year’s continuous service to raise a claim in this regard. The statutory minimum notice period, according to S86 of the Employment Rights Act 1996, is one week for each year of service up to a maximum of 12 weeks.

Claims for wrongful dismissal must be made within three months’ minus one day of the effective date of the termination of the contract to the Office of Employment Tribunals (OET). The case of Morran v City Council of Tenants (1998) is highly instructive.

Morran claimed wrongful and unfair dismissal when his employer dismissed him without being given the compulsory notice period; he just missed out on accumulating enough continuous service. Held by the Scottish Court of Session, Morran was entitled to claim wrongful dismissal and receive compensation however he could not claim unfair dismissal as he had never acquired the actual right to bring such a claim. Employees who claim wrongful dismissal tend to be reimbursed by compensation. It would be very rare for an employee to go back to their job after claiming wrongful dismissal.

In fact, S236 of the Trade Union and Labour Relations Act (Consolidation) 1992 states that no court or Tribunal can issue an order for specific implement or anything which will force the parties to work together under an employment contract.

Summary dismissal

Another type of dismissal is summary: “This is when you dismiss someone instantly without notice or pay in lieu of notice, usually because of gross misconduct (for example theft, fraud, violence).” (UK Government, 2020). Summary dismissal if not handled properly can be wrongful or unfair. An employer will need to prove the employee has committed violent or serious acts or health and safety breaches.

Even if an employer feels summary dismissal is the preferred option, it is worth stepping back and taking stock. It is often better and far safer to suspend an employee on full pay and then investigate the situation to head off a potential claim for unfair and/or wrongful dismissal.

Summary dismissal will be justified if the employer can prove the act committed by the employee amounts to gross misconduct in the workplace. However, if the employee can argue that their actions were not that of gross misconduct and no notice period was given employer will be liable for wrongful dismissal. The remedies available to the employee would be compensation.

Constructive dismissal

One last dismissal claim is that of constructive dismissal. This arises when an employer commits a serious breach of the employment contract and the employee has no alternative but to resign. In these types of claims, employees can treat themselves as dismissed as the employer’s behaviour has effectively destroyed the employment contract.

The individual claiming constructive dismissal is saying S/he has been unfairly dismissed and for this claim to be granted they must prove the employer’s conduct was so severe that it amounted to a fundamental or material breach. Constructive dismissal occurs in “situations where the employer made unauthorised deductions from wages; subjected to bullying and harassment; where the employer refused to follow the proper disciplinary or grievance procedures.” (Crossan, 2020)

In Sharp v Western Excavating Ltd [1978] ICR 221, Lord Denning explained the rules regarding constructive dismissal:

“An employee is entitled to treat himself as constructively dismissed if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment… then the employee is entitled to treat himself as discharged from any further performance.”

As a point of interest, Sharpe was not entitled to claim constructive dismissal: his employer was perfectly within its rights to refuse him time off from work to go and play cards. The employer’s behaviour was entirely reasonable and thus did not represent a material breach of the employment contract.

Procedural fairness

When contemplating dismissal as an option for disciplinary offences, it is often safer for employers to suspend the relevant employees on full pay and carry out a full investigation, rather than dismiss employee instantly. Employers should ensure that disciplinary procedures are clear and consistent and comply with current ACAS Codes on discipline at work (see link below).

https://www.acas.org.uk/acas-code-of-practice-on-disciplinary-and-grievance-procedures

Time limits for Employment Tribunal claims

Claims for both unfair and wrongful dismissal must be made within three months’ minus one day of the effective date of the termination of the contract to the Office of Employment Tribunals (OET). Failure by the claimant to submit an application within the time limit will mean that the claim is time barred i.e. it cannot normally be heard by the Tribunal – no matter its merits.

Remedies for dismissal

A claimant who brings a successful action for dismissal may be entitled to the following remedies issued by a court or a Tribunal:

Compensation
Reinstatement
Re-engagement

If the employee can claim dismissal, they could be entitled to compensation and/or reinstatement (failing that, re-engagement if reinstatement to their old position is no longer available). An employer does not have to reinstate or re-engage the employee and may find it more acceptable to pay a higher sum of compensation.

Sir Philip Rutnam

A current unfair dismissal case is that of Sir Philip Rutnam, former Permanent Secretary at the UK Home Office. Sir Philip is claiming unfair dismissal against his former boss, the current UK Home Secretary Priti Patel MP.

Sir Philip resigned because he is alleging that he was subjected to bullying by Mrs Patel (she denies these claims). At the time of his resignation, Sir Philip, was the Home Office’s most senior official, and he claimed that there had been a “vicious and orchestrated” operation against him. Sir Philip presented a claim to the Employment Tribunal for unfair (constructive) dismissal against the Home Secretary. A Cabinet Office investigation was initiated in March 2020 concerning the allegations against Mrs Patel in order to establish if she had breached the ministerial code. (Patel faces unfair dismissal claim from ex-adviser, 2020). The case is ongoing, but if Sir Philip is successful in his action, it will be hugely embarrassing to the UK Government.

Jo Millington

In another, recent case relating to constructive dismissal, a leading forensic scientist called Jo Millington was a victim of sexual orientation discrimination in the workplace. The scientist was asked by her boss whether she disliked him because of her sexuality. Millington, who is gay, took her case to an Employment Tribunal. She launched claims for sexual orientation discrimination, breach of contract and constructive dismissal against her former employer, ArroGen Forensics after the company’s CEO Joe Arend speculated whether her sexuality was the reason behind her evident dislike of him.

Arend had inquired whether Millington had a problem with him “because of her sexuality”, pointing out he was “big” and “used to play rugby”. The Reading Employment Tribunal was told Millington that she had previously complained about Arend’s behaviour when he referred to the level of her expenses and salary as “crazy”. The Tribunal found the company liable for discrimination on grounds of sexual orientation, constructive dismissal and breach of contract. It concluded that Jo Millington regarded her sexual orientation as a confidential matter; Millington was granted compensation. (Lowe, 2020).

No smoking!

In another unfair dismissal story, a long serving worker at a water bottling plant was sacked for smoking on the premises. The employee took a claim to Tribunal for wrongful and unfair dismissal, which resulted in a successful claim. The claimant, Mr Andrew was a team manager for production at Montgomery Waters Limited, where the no smoking rule was introduced in 2004. Employees were, however, permitted to smoke in a designated ‘smoking hut’.

Bosses were informed that Andrew was seen smoking outside the ‘smoking hut’. CCTV was viewed and appeared to show Andrew smoking, on four occasions, in prohibited areas. The footage showed a man wearing red overalls and Andrew was one of two people to wear these. Andrew, who had 15 years’ service with the company, was suspended during the disciplinary investigation. Andrew denied the allegations, but was still dismissed from his employment. During the Tribunal Hearing, the judge highlighted the vagueness in the firm’s handbook on whether smoking in prohibited areas would amount to misconduct. The judge also observed that it was the employer’s responsibility to enforce strict rules restricting smoking in particular areas. Although Andrew’s claims for both wrongful and unfair dismissal were upheld, the compensation awarded to him was reduced by 50% on the basis that he had contributed to his dismissal (Powys County Times, 2020).

New T&Cs

A controversial case regarding the potential threat of dismissal is Asda’s introduction of a new contractual agreement known as ‘Contract 6’, which will replace the existing agreement. It was introduced back in 2017 and, at this time, signing the new contract was voluntary.

‘Contract 6’ abolished paid breaks, introduced compulsory bank holiday working, staff could also be asked to work flexible hours and work in different departments within the store. In August 2019, Asda were accused of forcing employees to agree to accept ‘Contract 6’.

Asda stated that their employees are required to sign the new contract by November 2019 and, if they failed to do so, their contract of employment would be terminated. Employees would not be entitled to sick pay until the contract was signed. The GMB Trade Union attacked the new agreement and claimed that, under the new conditions, employees would be worse off. The main objection raised by the employees and their trade union was the inflexibility of the contract.

Under these new terms, day shift employees had to be more flexible with their working hours – they had to be available for work between 5am and midnight. It also meant employers could give less notice than before with regard to changing shifts. Employees took the view that Asda was disregarding employment law by unilaterally changing key terms and conditions.

In response to the claims being made, Asda may be able to justify their dismissals as fair in terms of Section 98(2) of the Employment Rights Act 1996 on the grounds that the employer can show that some other substantial reason is the justification behind terminating contracts.

In Asda’s case, the company may be able to justify their actions on the grounds that the new contractual arrangements have been necessitated as a result of a company restructuring exercise. This could make the dismissals potentially fair (Crossan, 2017).

Currently, lawyers for Asda and the GMB Trade Union are at loggerheads. One claim for unfair dismissal has so far been submitted by a former Asda employee, Duncan Carson. He was dismissed due to not signing the new ‘Contract 6’. Carson had worked at Asda for 13 years in total, and a large part of his legal argument is that “a contract is an agreement between two parties”. Carson believes, if one person can change the contract unilaterally.

Furloughing employees

The Coronavirus Job Retention Scheme (CJRS), announced by HMRC on 20 March 2020, is a UK Government funded scheme to provide financial support for employers to allow them to continue to pay part of their employees’ wage costs rather than lay them off during this crisis.

Eligible workers are put into the scheme by employers when agreement is made between both, and these employees are now furloughed workers (Association of Taxation Technicians, 2020)

Nunn (2020) explains that the scheme allows companies to ‘furlough’ their employees, covering 80% of the wage cost, allowing the claim to include 80% of their employee’s gross salary with cap of £2,500 a month.

CIPD (2020) defines furlough as a ‘temporary leave of absence from work’ due to economic conditions of affecting the company or country.

Although this is a new concept for the UK labour-force, the scheme does nothing to change how the fundamentals of UK employment law e.g. it does not mean a break in continuity of employment. The employee must give written agreement to the employer before being enrolled in the scheme.

The CJRS ensures the job security of the British workforce due to employers being unable to provide pay.

The official government site (UK Government, 2020) announced that the scheme is only temporary; set to last a maximum of 4 months, with a 3 consecutive week minimum period for each employee to be furloughed.

The government site explains that employees on sick leave are not eligible for furlough whilst the business is reclaiming Statutory Sick Pay. HMRC allows employers with less that 250 employees to reclaim 2 weeks of Statutory Sick Pay for each employee off work for a coronavirus related cause, although the method to do so has still to be put in place by the HMRC. Employees with multiple jobs can also be furloughed from either or both jobs, as the £2,500 wages’ cap applies to each job.

In order to be eligible for the government scheme, the employer must have PAYE account, and each employee must have been included on RTI submission in the pay period on or before 19 March 2020 (CIPP, 2020).

The UK Government (2020) also announced that any employees made redundant before 28 February, due to the impact of Coronavirus, could be eligible for furlough status – as long as they were on the PAYE scheme before they were dismissed. Employers could claim for them also and this part of the furlough scheme has prevented those in industries, such as hospitality, from being almost certainly made redundant.

It is, of course, up to the employer if they choose to furlough any dismissed employees who are eligible to partake in the CJRS and there is no legal requirement for the employer to go down this path.

Therefore, utilising the CJRS gives employers the cash-flow for the wage costs to be able to keep employees on their payroll for when the business reopens, as an alternative to dismissing them during this global crisis. At this present time,it ensures job security for the employee but it may also mean living with a reduced wage.

Conclusion

To summarise, dismissal is a vast and complex area of employment law yet once broken down becomes that bit clearer to understand. The area is ever changing with cases now coming against the Government itself and what pathway that may open if Rutnam is successful in his claim against Patel. There are also the uncertainties in the world just now surrounding coronavirus and the impact it was have on employee’s not only with their wages but with their employment status when this all ends.

References:

Association of Taxation Technicians, 2020. COVID-19: Job Retention Scheme- details for employers [online]. Available at <https://www.att.org.uk/covid-19-job-retention-scheme-details-employers> [Accessed 25th April 2020]

BBC News. 2020. Patel Faces Unfair Dismissal Claim From Ex-Adviser. [online] Available at: <https://www.bbc.co.uk/news/uk-politics-52356574> [Accessed 23 April 2020].

CIPD, (2020) Coronavirus (COVID-19): furlough guide [online]. Available at <https://www.cipd.co.uk/knowledge/fundamentals/emp-law/employees/furlough> [Accessed 25th April 2020]

CIPP,2020. Further updates to Coronavirus Job Retention Scheme guidance foe employers and employees [online]. Available at <https://www.cipp.org.uk/resources/news/further-updates-to-cjrs-employers-employees.html> [Accessed 25th April 2020]

Claire Knowels, 2017. What is the difference between unfair and wrongful dismissal [online] Available at https://www.peoplemanagement.co.uk/experts/legal/unfair-dismissal-wrongful-dismissal-differences (Accessed 26th of April 2020)

Crossan, S. J., 2017. Introductory Scots Law: Theory and Practice 3rd Edition. In: The Law of Employment. Glasgow: Hodder Gibson.

Crossan, S.J. (2020). Constructive dismissal. Scots Law [online] Available at https://seancrossansscotslaw.com/2020/04/09/constructive-dismissal/ (Accessed 26th of April 2020)

Employment Rights Act 1996

Employment Relations Act 1999

Lowe, Y., 2020. Leading Forensic Scientist Wins Sex Discrimination Case. [online] The Telegraph. Available at: <https://www.telegraph.co.uk/news/2020/04/23/leading-forensic-scientist-wins-sex-discrimination-case/> [Accessed 23 April 2020].

Nunn. D, 2020. HMRC reveals 20 April start date for Coronavirus Job Retention Scheme [online]. Available at <https://www.aatcomment.org.uk/trends/coronavirus/april-20-start-date-for-coronavirus-job-retention-scheme/> [Accessed 25th April 2020]

Powys County Times. 2020. Water Bottling Plant Worker Sacked For Smoking In The Wrong Place Wins Compensation. [online] Available at: <https://www.countytimes.co.uk/news/18339002.smoker-wrongfully-dismissed-hearing-rules/> [Accessed 24 April 2020].

Trade Union and Labour Relations Act 1992

UK Government, 2020. Check if you can claim for your employee’ wages through the Coronavirus Job Retention Scheme [online]. Available at <https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme> [Accessed 25th April 2020]

UK Government, 2020. Fair dismissal [online] Available at https://www.gov.uk/dismiss-staff/fair-dismissals (Accessed 26th of April 2020)

Copyright Helan Ali, Rebecca Brodie, Cameron Crossan, Jack Holland and Eve Richmond, 28 April 2020