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January 27, 2021
•January 27, 2021•

The Legality of Lockdown – Do Coronavirus Restrictions Go Too Far?

The Legality of Lockdown – Do Coronavirus Restrictions Go Too Far?

Key Contact: Claire Knowles

Author: Adam McGlynn

2020 was a year of rules and restrictions the likes of which no one could have anticipated. Since March, legislative responses to the Coronavirus pandemic have been issued on an almost daily basis, though still often struggling to keep up with Government announcements. The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (the Regulations) first brought into effect, on 26 March 2020, the broad restrictions of the UK’s first national ‘lockdown’ which had been announced three days earlier.

The Regulations had a significant impact on civil liberties in that name of preventing the spread of COVID-19 including confining people to their homes, requiring businesses to close, and placing limitations on gatherings. Though the Regulations were subsequently repealed in July 2020, similar restrictions were consistently imposed by replacement legislation over the course of the year and are likely to continue, in one way or another, for the first half of 2021. But were the Regulations lawful? In December 2020, the Court of Appeal passed final judgement on this important constitutional question.

In May 2020, a judicial review was sought to evaluate the impact and appropriateness of the Regulations on the basis that they were unlawful on the following grounds:

  1. The Regulations were ultra vires the Public Health (Control of Disease) Act 1984 (the Act);
  2. The Regulations apply ordinary public law principles; and
  3. The Regulations violate fundamental human rights guaranteed under the European Convention on Human Rights (ECHR).

The application was rejected by the High Court. However, the Court of Appeal decided to hear the application to appeal on the basis that it was in the public interest even though, by this point, the Regulations had already been repealed and the judgement would be largely academic.

Ultra Vires

The term ultra vires means to go beyond legal powers or authority. In this case, doubt was cast over whether the Secretary of State had been granted sufficient power by the Act to enact the Regulations as (1) the restrictions imposed were similar to those special restrictions which can be imposed by a justice of the peace; and (2) the Regulations applied nationally rather than to a more specific person or group of persons.

However, the Court of Appeal found that the express limitations within the Act, which the appellant relied on, were limitations of the restrictions which could be imposed by a justice of the peace. The Act, in fact, grants the Secretary of State quite wide-ranging powers as it was amended by the Health and Social Care Act 2008, following the SARs epidemic, in order to allow a swift response to a modern epidemic. If the Act imposed such severe limitations of the Secretary of State it would render the power ineffective in the event of such a tragedy and, if it also required an order from a justice of the peace, there would, in effect, be no power granted at all.

Public Law Principles

The appellant argued that the Secretary of State failed to abide by appropriate public law principles when issuing the Regulations. He argued that relevant considerations had not been taken into account including the effect of the Regulations on public health and the economy and whether less restrictive measures would have been more proportionate. There was no proof, however, that the Secretary of State did not consider such things and the Court of Appeal was satisfied, on the evidence available, that such considerations had been made.

The appellant additionally claimed the Regulations to be irrational as there was no justification for applying the restrictions to all members of the public when it could have been limited to more specific cohorts, such as those considered vulnerable. The Court of Appeal, however, recognised the presence of conflating opinions on this subject and found that the Government should be accountable to Parliament for political judgements such as this, rather than the judiciary. In addition, they recognised the presence of scientific and medical evidence considered by the Government and the responses already taken by nations across the world.

Contravention of Human Rights

The Regulations imposed a number of restrictions on the way we live our life in order to prevent the spread of Coronavirus. However, the Court of Appeal found that these restrictions did not infringe upon fundamental human rights, as alleged by the appellant. For example, they did breach the right to personal liberty because the regulations contained proportionate exceptions to the restrictions imposed including an overriding exception of ‘reasonable excuse’. Though the Court of Appeal accepted that the Regulations could arguably interfere with (1) the right to respect for private and family life; (2) the right to peaceful assembly and association; and (3) the right to peaceful enjoyment of possessions, these interferences would be justified as proportionate means towards a legitimate aim, namely the protection of public health. Considering the limitation and exceptions incorporated within the Regulations, the time limits and review mechanisms put in place, and the lack of any evidence that the Regulations were being enforced in a disproportionate manner in practice, the Court of Appeal found no breach of human rights.

Through the Regulations, the Government attempted to strike a balance between civil liberties and public health at a critical moment of the Coronavirus pandemic. The Court of Appeal recognised that the Government’s actions were lawful and that it would not be appropriate for the judiciary to interfere, or hold the Government to account, for matters of political judgement. Nevertheless, as the virus is brought slowly under control, and vaccines are gradually distributed, the Government will need to ensure that any restrictions imposed are necessary, reviewed regularly, and enforced proportionately.

For more information on the topic, contact our Employment team today.

•January 27, 2021•

Vaccination or Termination: Can Employees Be Required to Take the Coronavirus Vaccine?

Vaccination or Termination: Can Employees Be Required to Take the Coronavirus Vaccine?

Key Contact: Claire Knowles

Author: Adam McGlynn

Over the last year, the Coronavirus pandemic has caused widespread disruption to the livelihoods of the British people. At last the distribution of a vaccine provides a light at the end of the tunnel, however, there are many who are reluctant to receive it.

In the UK, individuals are free to refuse receiving a vaccination and the Government has stated that there is no intention to make any legislative amendment or exception to that rule for the Coronavirus vaccine. In light of this, employers may be wondering what options are available to them as they are obligated to take reasonable steps to reduce workplace risks and provide a safe environment for their employees. This would certainly include encouraging staff to receive the Coronavirus vaccination, however, should employers take a stronger stance, it may give rise to a tribunal claim.

Employers taking a strong stance on the vaccine may intend to initiate their disciplinary procedure for employees who refuse to be vaccinated. The ultimate end point of the disciplinary process would be the employees dismissal, however, there is also the risk that a claim arises earlier on the basis of the unfavourable treatment or because the employee believes the treatment already amounts to a constructive dismissal. The most likely claims an employer might face in this situation would be for unfair dismissal and/or discrimination.

Unfair Dismissal

An employee would need two years’ qualifying service to bring a claim for unfair dismissal here. If eligible though, the employee would have a reasonable prospect of successfully claiming that they have been dismissed on the basis of an unfair reason, one which is outside the employer’s reasonable range of responses. Employers would argue that requiring their employees to receive the vaccine amounts to a reasonable instruction as it is important for the safety of the work environment and to expedite the business’ recovery. This approach seems logical and in the interest of public safety, especially where the employee does not have a reasonable excuse for refusing. However, whether it is with regard to our fundamental right to respect for private and family life or out of respect for an employee’s genuine concerns about the vaccine, a tribunal would be justified in finding a dismissal to be unfair if solely for the reason that the employee refused to receive the vaccine. Whether the consensus of the courts falls on the side of public safety or personal rights in this argument is yet to be seen and will no doubt be explored in detail over the next year.

In some high-risk roles, such as care home support workers, it would be more likely that receiving the vaccine would be a reasonable instruction and the employer may have greater justification to use ‘refusing the vaccine’ as a reason for dismissal. This justification would be further strengthened if the employee is actively against the vaccine to the point where their conduct goes against the organisation’s stance on the vaccine’s importance. Even if the employee’s reluctance and/or conduct could amount to a fair reason, the employer would still need to follow a fair process which would, among other things, include evaluating alternatives to dismissal such as redeployment away from their current high-risk role.

Discrimination

A reluctance to receive a vaccine is not, in itself, a protected characteristic and so a discrimination claim based solely on that ground would not have a reasonable prospect of success. An employee may, however, try to associate their reluctance with a disability or a philosophical belief that prevents them from receiving the vaccine, though the facts would need to be heavily in their favour to find success. For example, being a passionate member of the anti-vax movement may enable the employee to establish a genuine belief against vaccinations, however, it may fail to be considered a qualifying philosophical belief if the tribunal finds that it is not sufficiently coherent or that the belief is not worthy of respect in a democratic society.

The strongest cases would relate to genuine religious beliefs which prohibit certain medical treatments or certain substances entering the body. Even if a protected characteristic can be identified, however, the employer would still have an opportunity to argue that requiring employees to receive the vaccination is a justifiable means of achieving a legitimate aim, for example, the safety of their staff and clients. Once again, the circumstances may give rise to a stronger justification depending on the industry and the clientele. For example, it would be easier to justify a vaccination policy in relation to medical professional and support workers who work with vulnerable clients.

As the Coronavirus vaccination is made available to more cohorts, please feel free to contact us if you would like to discuss your business’ proposed communications or actions on the topic.

•January 27, 2021•

Right to Work – in the UK, in a Pandemic, in 2021

Right to Work – in the UK, in a Pandemic, in 2021

Key Contact: Claire Knowles

Author: Adam McGlynn

Between Brexit and the Coronavirus pandemic, businesses have faced huge changes over the last year and the accompanying evolution of employment law shows no signs of slowing down. One area which has received particular attention over the last few months is the right to work in the UK, the appropriate checks businesses should be conducting, and these processes may be changing. Below is a list of our most frequently asked questions on the law and practice of right to work checks and you can also find our full webinar on the topic here.

General Principle

It is unlawful to employ someone who does not have the right to reside and the appropriate right to work in the UK or who is working in breach of their conditions of stay.

What sanctions could be imposed for employing an employee without the right to work?

Businesses could face a Civil Penalty of up to £20,000 per illegal worker as well as further sanctions such as the closure of the business, seizure of earnings, and the downgrading or revocation of a sponsorship licence. Individuals with responsibility over the illegal worker may also face sanctions such as disqualification from their directorship and/or, when knowingly employing a worker with no right to work, a criminal conviction with a prison sentence of up to five years and an unlimited fine.

What can employers do to protect themselves?

Employers can carry out “right to work” checks on all prospective employees and conduct follow-up checks when necessary. Employers will need to keep records of all checks carried out and not employ anyone it knows or has reasonable cause to believe is an illegal worker.

Demonstrable compliance with prescribed requirements will establish a Statutory Excuse excusing the employer from paying a civil penalty in the event of employing an illegal worker.

Failure to conduct checks is not a crime, in itself, unless the employer is also knowingly employing people with no right to work. The failure to conduct checks will, however, mean there is no Statutory Excuse established.

What process should be followed?

  • Obtain the individual’s original documents as prescribed in the Home Office guidance, which will depend on whether the individual has a permanent right to work, a temporary right, and/or will be required to supply further evidence.
  • Check (in the presence of the prospective employee) that the documents relate to the individual and are original, unaltered, and valid.
  • Copy the documents, record the date of the check, record the date for any follow-up checks, and retain copies of the documents securely.

When must checks be carried out?

Right to work checks must be conducted before employment commences to establish a Statutory Excuse. However, employers should also be cautious that their recruitment practices are not deemed to be discriminatory. Best practice would be for right to work issues to be raised in the final stages of selection and not, where possible, at the application stage.

Have there been any adjustments to right to work checks to account for COVID restrictions?

Right to work checks can already be conducted via video call but, ordinarily, the employer will still need to be in physical possession of the actual original documents. A scanned or faxed copy would not give rise to a Statutory Excuse.

For a temporary period, however, employers can conduct video call checks without physical possession of the original documents.

The employer may use copies (such as scanned copies or a photograph) and the individual must hold up the original documents to the camera during the call to be checked against the digital copies sent.

The recorded check date must be marked “Adjusted check undertaken on [DATE] due to COVID-19″. When the COVID-19 temporary measures end, a retrospective check will be necessary within eight weeks, marked with “The individual’s contract commenced on [DATE]. The prescribed right to work check was undertaken on [DATE] due to COVID-19″. Copies of both checks should then be kept for the employer’s records.

How will right to work checks look from 1 January 2021?

EU nationals arriving in the UK from 1 January 2021 will need to meet the ‘Immigration Rules’ requirements as non-EU nationals if they want to work in the UK.

Employers may therefore be considering conducting “right to work audits” to ensure that their EU national staff have a legal right to continue to work in the UK from 1 January 2021, BUT…

Home Office guidance clarifies that employers must not discriminate against EU nationals and should not ask existing employees or new hires to prove their status beyond their EU passport or national ID between 1 January 2021 and 30 June 2021 (the deadline for applying for EU Settled Status).

In the meantime, employers can encourage staff to apply under the EU settlement scheme and remind them of deadlines.

The Home Office has not clarified how employers should approach right to work checks following 30 June 2021 for those employees hired within the grace period who may or may not be working legally. We anticipate further guidance on this in due course, potentially requiring businesses to conduct follow-up checks. In the meantime, employers may rely on the current guidance from the Home Office during this grace period but should also remember not to ‘turn a blind eye’ to employees who they know are working illegally as knowledge will still give rise to criminal offence.

What should an employer do on confirming that the employee is working illegally?

Where it transpires that the employee does not have, or no longer has, the right to work in the UK, illegality renders the employment contract void and unenforceable by either party. Continued employment would become illegal and risk both civil penalties and criminal sanctions. The employee should, therefore, be dismissed and, as the contract is illegal, this can be done summarily without notice.

Employers should take care when dismissing an employee in these circumstances, particularly when terminating without notice, as being mistaken may give rise to a claim for wrongful dismissal and, potentially, unfair dismissal. As there is always the possibility of being mistaken, the employer should ensure they follow a fair process which, in this case, may mean offering the right of appeal.  

For further information on right-to-work checks in 2021, contact our Employment team.

•January 27, 2021•

The End of Post-Termination Non-Compete Clauses?

The End of Post-Termination Non-Compete Clauses?

Key Contact: Claire Knowles

Author: Adam McGlynn

In an attempt to bolster competition and innovation following the disruption of the Coronavirus pandemic, the Department for Business, Energy and Industrial Strategy (BEIS) has issued a consultation paper exploring ways to reform non-compete restrictive covenants in employment contracts. Non-compete clauses are already the most difficult restrictive covenants to enforce as they can easily amount to a restraint of trade if not specifically tailored to the employee. BEIS is of the opinion that, non-compete clauses are being used too readily by employers and are concerned that this will restrict flexibility in the labour market, slowing the UK’s economic recovery. Currently, BEIS is considering two options for reform.

Mandatory Compensation

Option one is to legislate that post-termination non-compete clauses will only be enforceable where the former employer provides compensation for the restrictive period, as is the case in some European countries. The intention with this option is to discourage arbitrary use of non-compete clauses and compensate the employee for limiting their freedoms following termination. It would also provide greater certainty on the enforceability of the non-compete clause, reducing the likelihood of litigation. Proposed supporting measures include providing greater detail on the clause prior to the individual commencing their employment and placing statutory limits on the maximum length of the restrictive period. From the consultation paper and case law on the subject, BEIS may consider limiting non-compete clauses to a maximum of 12 months, which is the longest restrictive period the courts are usually willing to enforce. To ensure that the statutory maximum does not become the presumed norm, BEIS also propose requiring greater compensation from employers for non-compete clauses spanning longer periods.

Ban Non-Compete Clauses

Option two follows the example of some US states by proposing to make all post-termination non-compete clauses unenforceable. This would provide the greatest degree of certainty; however, it removes a business’ ability to genuinely use a non-compete clause as a proportionate means of protecting its interests. BEIS could consider including exceptions to allow for justifiable uses, however, this would merely return to the current state of the law where non-compete clauses are considered unenforceable, as a restraint on trade, unless they are proved to be appropriate. BEIS have clearly anticipated that many businesses will be against this option and so have also asked for suggestions of greater limitations for non-compete clauses which fall short of an outright ban.

The Government published a call for evidence in 2016 on this topic of codifying limitations on non-compete clauses but decided not to take any further action. In the wake of the Coronavirus pandemic and the UK’s departure from the EU it is far more likely that the Government will take action to promote flexibility in the labour market and competition between businesses. It seems unlikely that post-termination non-compete clauses will become unenforceable in their entirety, however, limitations on their length and the introduction of mandatory compensation would be unsurprising. The deadline for responses is 26 February 2021 with no follow-up timescale published at this time.

If you would like to know more about restrictive covenants or have an opinion that you would like the BEIS to consider, please feel free to contact our employment team.