Employment law updates: Preserving jobs through JSS and tribunal rulings on fair treatment

By Jill Evans, Law Content Analyst, CIPD

Rules and regulations can’t always keep pace with real life. The UK Government’s new Job Support Scheme, announced on 24 September, is already having to be extended to support businesses forced to close during local or national lockdowns.

The scheme follows on from the Job Retention Scheme, both aimed at preserving jobs. When announced, the new scheme’s sole purpose was to top up the pay of employees brought back into work but working fewer hours because of reduced demand. To be eligible, the employees must work at least a third of their normal hours, be on the payroll by 23 September and not be under notice of redundancy. Their employer and the government will each pay a third of their normal wages for the hours not worked – leaving the employee adrift by one third of the unworked hours. The government contribution is capped at £697.92 per employee each month.

Even before it kicks off on 1 November, the scheme has been extended to also provide two-thirds of an employee’s wage, up to a cap of £2,100 a month, in those businesses required to close completely due to COVID-19 lockdowns under the Tier system. The payments do not, however, cover businesses opting to shut due to reduced demand or workplaces in public health authority shutdowns following an infection outbreak. The Job Support Scheme will run for six months.

By early October, there was new government guidance on the Job Retention Bonus announced in the summer. Organisations that bring back furloughed workers, and keep them employed until 31 January 2021, can claim a £1,000 bonus for each job preserved, providing the job holder is not serving a notice period starting before 1 February 2021.

The government measures reflect a growing tide of redundancies. It was recently reported that nearly half a million redundancies were planned during the first five months of the Coronavirus crisis, 58,000 in August alone, representing a fourfold increase on the same month last year. The source of that figure was the filing of HR1 forms, which organisations must submit to government if they plan to make 20 or more redundancies at one establishment within a 90-day period.

To dismiss fairly for redundancy, an employer must establish that a role is genuinely redundant, follow a fair procedure and consider whether there is suitable alternative employment for that employee. Not doing so risks an unfair dismissal or a protective tribunal award in large-scale redundancies.

Tribunal penalties

Meanwhile, employment tribunal awards have been prominent in two recent cases. In Tan v Copthorne Hotels, a senior executive in a hotel chain had an unprecedented costs award of £432,000 made against him after his claim for unfair dismissal, race and sex discrimination, victimisation, harassment, whistleblowing and unfair deductions from wages were all dismissed following a seven-day hearing.

Tan claimed he had been discriminated against and underpaid because he was gay and of Chinese Singaporean ethnicity. The tribunal found his dismissal for redundancy fair and made the costs award because it found he had acted in a “duplicitous” manner by making covert recordings of his colleagues in order to implicate them in his claim. The law firm representing the employer said the decision “should serve as a warning to employees bringing unfounded and vexatious claims”.

In another case, Taylor v Jaguar Land Rover, an engineer with 20 years’ service who identified as gender fluid, was subjected to jokes and insults from colleagues, and maintained the employer provided no support for her condition. She claimed constructive unfair dismissal, harassment, discrimination and victimisation. The employer defended the claim on the grounds that gender reassignment was not covered by the Equality Act 2010.

The employment judge found the Act did cover people identifying as gender fluid and non-binary. The level of compensation, which is uncapped in discrimination cases, is yet to be decided but the tribunal said that ‘aggravated’ or exemplary damages should be made against the company because of the insensitive way it dealt with its employee. Jaguar’s HR director has issued an official apology to the claimant.

For advice on dealing with redundancies during the COVID-19 crisis, go to the CIPD’s Responding to the Coronavirus page

Find out more about costs awards and ‘vexatious’ claims in our member-only Tribunal claims, settlement and compromise Q&As

For more details on legislative changes, go to our Recent and forthcoming legislation page

For a list of member-only resources on a range of legal topics, go to our Employment Law A-Z

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