Category: Employment Law

As part of the Autumn Budget and Spending Review 2021, the government has confirmed that it will continue to meet 95% of the apprenticeship training costs for employers who do not pay the Apprenticeship Levy and it will deliver several apprenticeship system improvements for all employers. These include:

• an enhanced recruitment service by May 2022 for small and medium-sized enterprises (SMEs), helping them hire new apprentices 
• supporting flexible apprenticeship training models to ensure that apprenticeship training continues to meet the needs of employers. By April 2022, the government will consider changes to the provider payment profiles aimed at giving employers more choice over how the apprenticeship training is delivered, and explore the streamlining of existing additional employer support payments so that they go directly to employers
• introducing a return-on-investment tool in October 2022 to ensure employers can see the benefits apprentices create in their business.

The government has also confirmed the extension of the £3,000 apprentice hiring incentive payment for employers until 31 January 2022.

The government has published its response to its 2016 consultation on tipping, gratuities, cover and service charges and has confirmed its intention to bring forward legislative measures to ensure tips, gratuities and service charges go to workers in full. The legislative measures will include:

• requirements for employers in all sectors to not make any deductions from tips received by their staff, including admin charges, other than those required by tax law
• requirements for employers to distribute tips in a way that is fair and transparent, with a written policy on tips, and a record of how tips have been dealt with. Employers will be able to distribute tips via a tronc, and a tip must be dealt with by no later than the end of the month following the month in which it was paid by the customer
• provisions to allow workers to make a request for information relating to an employer’s tipping record. Employers will have flexibility in how to design and communicate a tipping record, but they should respond within four weeks
• requirements for employers to have regard to a new statutory Code of Practice on Tipping which will support the legislation.

Where employers fail to comply with the new measures, workers will be able to bring employment tribunal claims.

The provisions will be included in the upcoming Employment Bill which will be brought forward when parliamentary time allows.

The Equality and Human Rights Commission (EHRC) confirmed in February 2021 that enforcement action against employers for failing to report their gender pay gap data for the last reporting year (2020/21) would be suspended for six months and so would not begin until 5 October 2021.

This additional six-month period is almost at an end and so, if they have not already done so, private sector employers with 250 or more staff must now submit their 2020/21 gender pay gap reports, using the snapshot date of 5 April 2020, by no later than 5 October 2021. Employees who were furloughed on reduced pay under the Coronavirus Job Retention Scheme as at 5 April 2020 should not be included when calculating the hourly pay figures; where this gives a misleading impression, employers may want to explain this in a voluntary supporting narrative accompanying their report.  
 

The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 have now been approved by both House of Parliament and will come into force on 11 November 2021. The regulations effectively require staff working in registered care homes in England to be fully vaccinated against COVID-19 unless they’re medically exempt.

The regulations provide that the care home must secure that people do not enter the care home premises (excluding any surrounding grounds) unless they fall into one of the specified exceptions. Those exceptions include that:

• they’re a resident of the care home
• they’ve provided evidence of their full COVID-19 vaccination status, or evidence that for clinical reasons they cannot be vaccinated
• it’s reasonably necessary for them to provide emergency assistance in the premises, or urgent maintenance assistance with respect to the premises, e.g. an emergency plumber
• they’re attending the premises in the execution of their duties as a member of the emergency services
• they’re a friend or relative of the resident, or they’re visiting a resident who it’s believed is dying
• it’s reasonably necessary for them to provide comfort or support to a resident in relation to their bereavement following the death of a friend or relative
• they’re under the age of 18.

The regulations are to be reviewed by the government, and a report published, within one year after the date on which they come into force and within every year after that.

Following its summer 2019 consultation entitled “Health is everyone’s business: proposals for reducing ill health-related job loss”, the government has now published its response which takes into account the impact of the coronavirus pandemic on work and health. The response confirms that the government:

• will not be proceeding with the consultation proposal to introduce a new right for non-disabled employees to request work or workplace modifications on health grounds – note that the existing duty on employers to make reasonable adjustments for disabled staff under the Equality Act 2010 will remain in place
• will be taking forward its manifesto commitment to encourage flexible working and to consult on making it the default unless employers have good reasons not to – that consultation will be published “in due course”
• will develop a national information and advice service for employers on health, work and disability, with material designed to help manage common health and disability events in the workplace
• has asked the Health and Safety Executive (HSE) to work on developing non-statutory guidance to support disabled people and those with long-term health conditions to remain in work (and the HSE will also explore introducing statutory guidance in this area)
• will not be implementing the range of measures proposed to reform statutory sick pay (SSP) at this stage because “now is not the right time to introduce changes to the sick pay system”. However, the government does acknowledge that several important questions posed in the consultation on the future of SSP require further consideration, so reform in this area is still possible in the future
• is exploring extending fit note certification to a wider group of healthcare professionals
• intends to introduce digital certifying of fit notes (to remove the current requirement for them to be signed in ink) and create a new interactive version of the fit note which will provide advice and support for suggested workplace adaptations/modifications to encourage work and health discussions between patients and employers
• will test a subsidy scheme to enable SMEs and self-employed people to access quality occupational health (OH) support and will work with key stakeholder organisations to explore how it may be able to support innovative ideas that increase the purchasing of OH by SMEs and the self-employed
• will continue to promote and raise awareness of the Access to Work programme.

When a new employee is added to the payroll it is the employers' responsibility to ensure they meet the employees’ rights. One of the issues that must be considered is the employees’ length of continuous employment. Continuous employment is calculated from the first day of work without a break.

The length of continuous employment gives certain rights to employees, including maternity pay, flexible working requests and redundancy pay.

Infrequent breaks in normal employment still count towards a continuous employment period. These are:

• sickness, maternity, paternity, parental or adoption leave
• annual leave
• employment overseas with the same company
• time between unfair dismissal and an employee being reinstated
• when an employee moves between associated employers
• military service, for example with a reserve force
• temporary layoffs
• employer lockouts
• when a business is transferred from one employer to another
• when a corporate body gets taken over by another because of a legal change

Any days that an employee is on strike do not count towards continuous employment, but the days are not treated as a break.

We would like to remind any students and seasonal staff that work part time, for example in a summer job, to ensure they are being paid the National Minimum Wage (NMW). All workers are legally entitled to be paid the NMW. This includes temporary seasonal staff, who often work short-term contracts in bars, hotels, shops and warehouses over the summer. 

HMRC helped some 155,000 people recover more than £16 million in pay which was due to them. HMRC is reminding workers to check their hourly rate of pay, and to also check any deductions or unpaid working time. The most common causes of minimum wage underpayment are deductions and unpaid working time such as travelling time between work locations and training time.

The current National Minimum Wage (NMW) and National Living Wage (NLW) rates came into effect on 1 April 2021. The NLW is the minimum hourly rate that must be paid to those aged 23 or over. The hourly rate of the NMW (for 21-22 year olds) is £8.36. The rates for 18-20 year olds is £6.56 and the rate for workers above the school leaving age but under 18 is £4.62. 

Employees that are not being paid correctly can make an official complaint through GOV.UK or contact the ACAS Pay and Work Rights Helpline on 0300 123 1100.

With England having moved to step 4 of the roadmap out of lockdown from 19 July 2021, the government has published updated guidance on working safely during coronavirus. The guidance, which is to be kept under review, has been re-categorised into the following six sector-specific guides:

• construction and outdoor work
• events and attractions
• hotels and guest accommodation
• offices, factories and labs
• restaurants, pubs, bars, nightclubs and takeaway services
• shops, branches and close contact services.

There is also a general step 4 overview which makes clear that the government is no longer instructing people to work from home and businesses no longer need to implement social distancing in the workplace. However, it warns that businesses still have a legal duty to manage risks to those affected by their business, and the way to do this is to carry out a health and safety risk assessment, including the risk of COVID-19, and to take reasonable steps to mitigate the identified risks. The onus is on businesses to decide what mitigations are appropriate to adopt. The guidance also states that the government expects and recommended a gradual return to the workplace over the summer, and employers should discuss the timing and phasing of a return with their workers. 

The sector-specific guides each set out six priority actions for businesses to take from 19 July 2021 to protect their staff and customers. These are:

1. Complete a health and safety risk assessment that includes the risk from COVID-19
2. Provide adequate ventilation
3. Clean more often
4. Turn away people with COVID-19 symptoms
5. Enable people to check in at the business venue
6. Communicate and train.

Employers are advised to give extra consideration to workers who are at higher risk, discussing their individual needs and supporting them in taking any additional precautions advised by their clinicians, and those facing mental and physical health difficulties. 

Public Health England has published a new guide for employers on COVID-19 vaccination. The guide encourages employers to support the government’s COVID-19 vaccination programme and it covers the following subjects:

• why supporting vaccination of employees against COVID-19 is important
• what employers can do to support the vaccination of their workforce
• resources to help employers promote vaccination to their workforce.

In particular, the guide links to the previously published employer toolkit (which has now been updated) on supporting employees to get the COVID-19 vaccine. The toolkit can be downloaded as a zip folder and comprises an employer briefing sheet, posters, email signatures, a Q&A document, web banners and other resources.

Acas has published new advice for both employers and workers on the treatment of workers who are suffering from the prolonged effects of a COVID-19 infection, now widely known as long COVID. 

Acas advice is that employers and workers should discuss the impacts of long COVID as early as possible after diagnosis and then work together to find ways to help support workers who are suffering from it. The advice also states that the usual rules for sickness absence and sick pay apply when someone is off work because of long COVID, and that the options available to employers to help their staff return to work include:

• arranging and offering occupational health assessments
• exploring reasonable adjustments, which can vary from changed working hours to adapted physical work spaces
• discussing flexible working as an option as well as a phased return, which may mean the worker coming back part-time initially to build back up to working their normal hours.

The advice also provides information on whether long COVID is to be treated as a disability and avoiding discrimination.

The Information Commissioner’s Office (ICO) has published a new blog about free advisory check-ups that it is offering to help small businesses make the best use of their personal data. Small organisations, including small businesses, small groups/clubs and sole traders, can apply for an informal session of up to two hours where they will work with a member of the ICO’s SME team to complete a health check of their practices. At the end, they will receive a brief report setting out what they need to do to handle data more effectively as their business grows. Small organisations can apply for a check-up by completing an online form, and they will then be contacted by the ICO if their request can be progressed.

In addition, the National Cyber Security Centre (NCSC) has announced that it is offering new free online training for small organisations, particularly aimed at those that do not have an IT department or technical staff responsible for cyber security. The training will guide businesses through the actions they need to take to reduce the likelihood of common cyber-attacks. The training demonstrates how businesses can improve their resilience, and covers five key areas:

• backing up data correctly
• protecting the business against malware
• keeping the devices used by employees secure
• the importance of creating strong passwords
• defending the business against phishing.

HMRC’s employment status service can be used to help ascertain if a worker should be classified as employed or self-employed for tax purposes in both the private and public sector. The service has recently been updated to reflect off-payroll working changes that came into effect on 6 April 2021.

The service provides HMRC’s view as to whether IR35 legislation applies to a particular engagement and whether a worker should pay tax through PAYE as well as helping to determine if the off-payroll working in the public sector rules apply to a public sector engagement.

The software can be used to check the employment status of:

• a worker providing services;
• a person or organisation hiring a worker; or
• an agency placing a worker.

HMRC has said that it will stand by the result given unless a compliance check finds the information provided was not accurate. HMRC will not stand by the results of contrived arrangements designed to achieve a particular outcome. HMRC are clear that this would be treated as evidence of deliberate non-compliance and could result in higher penalties.

The service is anonymous, and the results are not stored online. However, the results can be printed and held for your own records. If any changes take place to the workers role their status should be reassessed.

The government is calling on all employers to make a commitment to help employees get the COVID-19 vaccine, including during working hours, to drive vaccine uptake across the UK. To support this, the government has produced a toolkit so that employers can run their own internal awareness campaigns to promote the benefits of vaccination.

The toolkit can be downloaded as a zip folder and it comprises an employer briefing sheet, a vaccine fact sheet, posters, question and answer videos, web banners and other resources so that employers can ensure their employees get access to reliable and accurate information about the COVID-19 vaccine.

The Supreme Court has handed down a landmark judgement in the Uber case. The Supreme Court unanimously upheld the decisions of earlier courts and has found that Uber drivers are ‘workers’ and not self-employed as Uber has tried to argue. 

The decision of the Supreme Court as the final court of appeal in the UK marks the end of the case for Uber. The Uber case had been ongoing since an employment tribunal decision in October 2016 found that two former Uber drivers worked for Uber. At the time of the tribunal hearing in 2016, the number of Uber drivers operating in the UK was estimated to be around 40,000, of whom around 30,000 were operating in the London area. The ruling in this case has important implications, not just for Uber drivers, but for the many people across the country working in the gig economy.

The decision means that Uber drivers are entitled to the minimum wage (including the right to back pay), holiday entitlement and certain other employment rights. The Supreme Court also ruled that Uber drivers are ‘working’ for the entire period that they are logged into the Uber app within the territory in which they were licensed to operate and were ready and willing to accept trips, and not just during the periods that they are driving passengers to their destinations.

The judgment does not give the ‘workers’ full ‘employee’ rights, for example, a worker cannot claim unfair dismissal or a statutory redundancy payment.

In an apparent U-turn, the Business Secretary has confirmed during a television interview that a proposed post-Brexit review of EU-derived workers' rights, due to be carried out by the Department for Business, Energy & Industrial Strategy (BEIS), has been cancelled. The review was expected to consider proposals to amend the Working Time Regulations 1998, including the possible termination of the 48-hour maximum working week, changes to rules on rest breaks and excluding overtime pay from the calculation of some holiday pay entitlements. The Business Secretary has also stated on Twitter that the government wants to "protect and enhance workers' rights going forward, not row back on them”.

It therefore now seems to be the case that no changes to EU-derived employment law will be pushed through by the government in the short term. In the longer term, that position may well change.