HR in Hospitality Blog April 30th 2020 (DLA Piper Employment Law Update)

By Steve Williams

HR in Hospitality Blog April 30th 2020

Hosted by the wonderful Jonathan Exten-Wright and Vinita Arora from DLA Piper

Thank you for logging in to attend our first webinar delivered by Jonathan and Vinita our legal partners at DLA Piper.

Summary of the key points shared to support the slide deck

Coronavirus – sharing some common themes for hospitality. Biggest negative impact on the hospitality sector in recent living memory. Need to think about planning for what happens after furlough.

Using government schemes: Coronavirus Job Retention Scheme the Direction is opaque and sometimes inconsistent, It is a grant being administered by HMRC to avoid mass unemployment in society. Remember this is a grant and it is important that all organisations follow Treasury Direction. Existing fraud legislation will be used if the system is abused by any tax or accounting teams and anticipate that HMRC will audit organisations. The scheme has been extended to run until the end of June. Hospitality has borne the brunt of this and will likely be the last to return, Kate Nicholls, CEO UK Hospitality is lobbying the government to extend this for hospitality businesses.

Be clear on the rules around furloughing staff, ensure you have confirmed in writing to all your employees. If you have made someone redundant or they were on a fixed term contract that has left you can under the spirit of the terms re-hire and then make them furloughed but make sure you are within the 28 February deadline or the contract expires after the 19 March, check who might fall into the relevant qualifying dates.

No account will be taken of anything that is not regular salary or wages; keep a record of how you are submitting calculations for those who have variable pay. Regular payments are the ones you are obliged to make, non-discretionary fees, overtime and commission but you would not include payments made at the discretion of the employer or client so this includes tips, tronc, discretionary bonus or gratuities.

If someone is on long term sick furlough does not begin until SSP period has ended, so be aware of this. Employees can take holiday during the furlough at the usual rate of pay and this will not breach furlough rules. Furloughed employees continue to accrue annual leave. Cautionary note make sure you do not enforce too much holiday during this time so there is none left when people return.

Food for Thought: Make sure you have carefully drafted furlough agreements to limit your liability under contracts of employment.

Recent Case Law – find out more from all the interesting recent hospitality cases being reported for lessons learnt

Vicarious Liability:

Morrison Supermarkets were vicariously liable for a disgruntled employee who copied payroll data and gave it to a newspaper. Morrisons were held liable for the employees grudge and breach of Data Protection Act. Ultimately the Supreme Court overturned the judgement and decided that the supermarket was not actually responsible in this case.
Barclays Bank: A self-employed doctor who carried out medical examinations for new employees who went on to sexually assault the new recruits. The key element here was the relationship ‘akin’ to employment to make it reasonable to make a claim. Lesson learnt be mindful to instructions and control you have over someone who is self-employed but within your control. Cautionary tale.

Confidentiality:

Scott vs LGBT Foundation: Practical learning points where a person disclosed information about posing a risk to himself and the foundation informed his GP verbally and told him of this. A note was made on his file and his claim was that this note would jeopardise future employment. There was no breach of DPA as the disclosure was verbal so did not constitute a breach.

Trade Secrets:

Trailfinders: took action against former employees and a rival company. This is when someone sets up essentially in competition and takes contact details. What impact does this have on confidentiality clauses in contracts. Organisations need to show that the information taken is commercially valuable to you as a business.

Wrongful Dismissal;

Human Kind Charity: Employee excessive unnaturalised use of iPad that ran up £8000 of charges. She was taken through a fair disciplinary process and dismissed. She appealed. It was held that being silence would not be self-incrimination and she should have said something, the not disclosing was key here to her losing the case.

Whistleblowing

Alder Hay case: Detriment and race allegations in an internal process that did not go anywhere so employee decided to go to media with allegations against the NHS Trust. The Chairman set the record straight as a rebuttal in robust terms back to the media but this could potentially amount to a detriment of the whistle-blowers character. So ensure you are careful in your response and the reasons why ‘causation’ be careful of the terms of doing so to avoid any other claims.

During these difficult and unprecedented times we wanted to continue to offer support and advice to our members and provide some continuation of events and updates through the use of virtual platforms. Of course, we would love to have events that involve the usual networking social interaction, food and drink but we know this is not possible at the moment.

We will continue to post updates and advice and tips on our website and send notifications to all of you on the mailing list. The committee are working on how we can arrange and plan for other virtual events short term before we get back to some form of different normality later this year.

If you have any ideas or suggestions on what you would like next please let us know via Kim at info@hrinhospitality.co.uk .

We will get through this and our sector will be proud of the way we have all worked incredibly hard to support our teams and keep focusing on the future.
Stay safe and well everyone

Esther O’Halloran
Chair of HR in Hospitality