Employment Law Update

26 August 2021

August/September 2021

Furlough: employers’ contributions now required
Since 1 August 2021, employers can only claim up to 60% of furloughed employees’ wages, up to a maximum of £1,875. They are now responsible for making up the remaining 20% difference so that furloughed employees continue to receive 80% of their wages for hours not worked, up to a maximum of £2,500 per month. Employers must continue to pay all employees’ national insurance and pension contributions. The furlough scheme will end on 30 September. 
You can find more information on our website: ‘Preparing for the end of furlough’.
Returning to the office
With the ending of all restrictions in July, the government is now encouraging all employers to bring their staff back to the office, albeit in a controlled fashion. It is up to employers to decide which Covid-safe measures to keep, such as social distancing, mask-wearing, or taking regular lateral flow tests, and which to abandon. Although Covid passes are unlikely to become mandatory for all, their required use in specific environments, such as nightclubs, will no doubt be monitored to gauge their effectiveness in helping to keep the virus under control in places where many people gather. Our employment team can help you draft ‘return to work’ guidance. 
Pingdemic: self-isolation exemptions
Since August 16 fully vaccinated individuals have not been required to self-isolate as a result of being ‘pinged’ by NHS Test and Trace, however they are required to get a PCR test. Anyone who tests positive for Covid-19 will have to isolate as per government guidance. The government has published guidance for employers to help them encourage those employees who have yet to be vaccinated to do so unless they are medically exempt. 
Sexual harassment at work consultation
In response to the consultation on sexual harassment at work, the UK government is proposing to introduce preventative measures. These include requiring employers to take “all reasonable steps” to prevent sexual harassment at work, including specific protection for volunteers and interns, and third party harassment. The time frame has not been published and any changes are not considered to be imminent; nonetheless, this provides employers with a good opportunity to review and update all their relevant policies and training programmes. 
National Disability Strategy
The government has pledged a number of actions to help disabled people back into the workplace as part of a National Disability Strategy. Commitments include setting up an online advice hub for employers; improving the Access to Work scheme; consultations on workforce disability reporting and making flexible working the default; and the introduction of unpaid carers’ leave. Further work will be done to help disabled apprentices. 
 Case update  
Furlough should have been considered before redundancy 
Mhindurwa v Lovingangels Care Ltd
Mrs Mhindurwa was employed in 2018 by Lovingangels Care to provide live in care. At the beginning of the pandemic, her client was admitted to hospital and was subsequently transferred to a care home. In the meantime, due to Covid-19 related restrictions, the number of requests for live in care had reduced considerably with the result that Lovingangels was unable to offer Mrs M an alternative live-in position. She was unable to carry out daily care responsibilities as she lived too far away. Her employer started a redundancy consultation, in spite of Mrs M requesting to be furloughed, and made her redundant in July 2020.

Mrs M brought a claim for unfair dismissal (in addition to claims relating to unpaid wages and holiday pay, which were dismissed) on the grounds that she should have been furloughed rather than made redundant – not least as her employer was continuing to advertise for live-in carers. In his summing up, the judge noted that Mrs M’s appeal hearing was a ‘rubberstamp exercise and not a proper appeal…gave no consideration to whether the claimant should be furloughed.’ He upheld Mrs M’s claim for unfair dismissal noting: ‘I am of the view that the failure to give consideration to the possibility of furlough and the failure to offer the claimant a proper appeal render the claimant’s dismissal unfair.’ Although, as with all tribunal decisions, the outcome is fact-specific, while the furlough scheme remains in place until 30 September, employers need to ensure that they have considered furlough as a practical alternative to redundancy.


Tina Chander
Partner, Head of Employment
[email protected]
+44 1926 884687
Suki Harrar
[email protected]
+44 1926 880717