Category: Employment Law

139 employers, including some of the UK’s biggest household names, have been named and shamed in a government press release for failing to pay £6.7 million to over 95,000 workers in breach of the national minimum wage (NMW) legislation.

This is the first time in over two years that the government has named and shamed employers for failing to pay the NMW, as the naming and shaming scheme was paused in 2018 so that an evaluation into its effectiveness could be carried out. The scheme has now resumed but one key change is that the press release includes a new educational bulletin which sets out the most common reasons for NMW underpayment among employers in this naming round, together with a summary of NMW guidance on paying workers.

The press release highlights that one of the main causes of NMW breaches was workers being made to cover work costs, which would take their pay below the NMW, such as paying for uniforms, training, meals or parking fees. In addition, some employers failed to raise workers’ pay after they had a birthday which should have moved them into a different NMW bracket. Two other common reasons for underpayment were failing to pay the correct rate to apprentices and failing to pay workers for working time, such as for additional work before and after their shifts or rounding clock-in time to the nearest hour.

All the employers named in the press release have now paid back their workers and were also forced to pay financial penalties.

According to proposals set out in a government policy paper, the revised rates for statutory maternity pay (SMP), statutory adoption pay (SAP), statutory paternity pay (SPP), statutory shared parental pay (ShPP), statutory parental bereavement pay (SPBP) and statutory sick pay (SSP) for tax year 2021/22 are to be as follows:

• the standard weekly rates of SMP, SAP, SPP, ShPP and SPBP will increase from £151.20 to £151.97 (or 90% of the employee’s weekly earnings if that amount is lower than the statutory rate) – it is assumed this will be for payment weeks commencing on or after Sunday, 4 April 2021
• the prescribed weekly rate of maternity allowance (MA) will increase from £151.20 to £151.97 (or 90% of the individual’s weekly earnings if that amount is lower than the statutory rate)
• the weekly rate of SSP will increase from £95.85 to £96.35 from 6 April 2021.

The amount of the earnings threshold (currently £120.00 per week) for tax year 2021/22, below which employees do not qualify for SMP, SAP, SPP, ShPP, SPBP and SSP, is yet to be confirmed.

The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 received Royal Assent on 11 November 2020. This is the legislation which will end the free movement of persons under retained EU law in the UK at 11pm on 31 December 2020. It will also repeal other retained EU law relating to immigration.

A new points-based immigration system will apply to EU (including EEA and Swiss) citizens arriving in the UK from 1 January 2021 onwards and these workers will need to apply for a work visa in advance. They will be awarded points for a job offer at the appropriate skill level, if they speak English, and for meeting the appropriate salary threshold. Visas will be awarded to those who gain enough points. However, Irish citizens will continue to be able to enter and live in the UK as they do now.
 

Shielding for clinically extremely vulnerable people was paused in England on 31 July 2020. However, the government has now updated its guidance on shielding and protecting people who are clinically extremely vulnerable from COVID-19 to cover the period of the new national restrictions from 5 November to 2 December 2020. 

Whilst there is no return to the very restrictive shielding advice that was given earlier this year, from an employment perspective the updated guidance strongly advises those who are clinically extremely vulnerable to work from home. If they cannot work from home, it states that they should not attend work for the four-week period of the national restrictions. Formal shielding notification letters have again been issued to those on the government’s shielding list and these letters can act as evidence for employers that the individuals have been advised to follow shielding guidance and should not work outside of their home for the period stated in the letter. Note that the list of conditions that make an individual clinically extremely vulnerable has also been expanded to include adults with Down's syndrome, and adults on dialysis or with chronic kidney disease (stage 5). 

Where clinically extremely vulnerable employees are unable to work from home, they are entitled to receive statutory sick pay (SSP), if otherwise eligible. Alternatively, they can be placed on furlough under the extended Coronavirus Job Retention Scheme, provided they were on the payroll on 30 October 2020.

At the end of the four-week period, the guidance advises that the aim will be to return to a regional approach and further guidance will be issued for the clinically extremely vulnerable at that time. 

Finally, the guidance states that employees living in the same household as someone who is clinically extremely vulnerable can still attend work if they cannot work from home, and they should follow the general national restrictions guidance.
 

The Living Wage Foundation has announced that its UK Living Wage has risen by 20p per hour from £9.30 to £9.50 per hour. Its London Living Wage has risen by 10p per hour from £10.75 to £10.85 per hour. Over 250,000 UK workers will now receive a pay rise as a result.

The Living Wage Foundation’s real Living Wage is an hourly rate which it calculates independently and updates annually each November. It is calculated according to the basic cost of living in the UK and London, based on a basket of household goods and services, and it is entirely separate from the government’s mandatory national living wage (NLW) which is currently £8.72 per hour for workers aged 25 and over. The new Living Wage rates apply to workers aged 18 and over. 

The Living Wage is voluntary, so employers do not have to pay it. However, many employers have committed to doing so and the Living Wage Foundation offers accreditation to those employers that do pay it. The number of accredited Living Wage employers now stands at nearly 7,000 nationally. Accredited Living Wage employers should implement the rises as soon as possible and within six months, so all affected employees should receive the new rate by 9 May 2021.

HMRC has updated its Coronavirus Statutory Sick Pay Rebate Scheme guidance to clarify the evidence that employers can require from their employees to establish the employer’s eligibility to claim under the scheme.

Eligible employers can use the scheme to claim back up to two weeks of coronavirus-related statutory sick pay (SSP) per employee. HMRC’s guidance has been updated to clarify that, although employees do not need to provide a doctor’s fit note for employers to make a claim, they can request either:

•    an isolation note from NHS 111 – if the employee is self-isolating and cannot work because of coronavirus, or
•    a “shielding note” or a letter from the employee’s doctor or health authority advising them to shield because they are at high risk of severe illness from coronavirus.

The scheme applies where employees are unable to work (including from home) because they:

•    have coronavirus symptoms
•    are self-isolating because someone they live with has symptoms
•    are self-isolating because they’ve been notified by the NHS or public health bodies that they’ve come into contact with someone with coronavirus
•    are shielding and have a letter from the NHS or a GP telling them to stay at home
•    have been notified by the NHS to self-isolate before surgery for up to 14 days.

Employers can make more than one claim per employee, but they cannot claim for more than two weeks of SSP in total for that employee.
 

The government has launched a nationwide marketing campaign to ensure businesses are ready for the introduction of the UK’s new points-based immigration system from 1 January 2021. The campaign will run throughout the autumn, using a wide range of channels to reach employers, including radio, social media, digital and outdoor advertising. The key message for employers is that the way they hire from the EU is changing – to recruit from outside the UK, they will need to be a licensed sponsor and have a sponsor licence.

Alongside the campaign, the government has also published new online guidance for employers on recruiting people from outside the UK from 1 January 2021. The guidance provides an overview of the key routes of entry to the UK for sponsored workers under the new immigration system. These include Skilled Workers (due to replace Tier 2 (General)), Intra-Company Transfers and Other Routes (e.g. Youth Mobility Scheme). 
 

Acas, the CBI and the TUC have issued a joint statement to employers on best practice for handling redundancy situations caused by the coronavirus pandemic. The statement recognises that employers may need to make redundancies in order to survive, but it urges them to exhaust all possible alternatives before doing so and to carry out effective consultation with workers and trade unions. 

The statement then calls on all employers considering redundancies to work with their workers and trade unions and get the process right by following these five guiding principles:

1. Do it openly: there are rules for collective redundancies (those involving 20 or more staff), but whatever the scale, the sooner people understand the situation, the better for everyone.
2. Do it thoroughly: to understand what's happening, people need information and guidance, and staff representatives need proper training.
3. Do it genuinely: consultation means hearing people's views before making a decision, so employers need to be open to alternatives put forward by individuals or unions and should always give feedback.
4. Do it fairly: all aspects of the redundancy procedure should be conducted fairly and without any form of discrimination.
5. Do it with dignity: losing your job has a human as a well as a business cost; the way an employer lets people go says a lot about the organisation's values. Employers should therefore think about how they will handle the conversation and whether it will take place face-to-face or remotely and should remember that they may want to rehire the same person in the future.

The government’s latest advice, as confirmed in the COVID-19 Secure guidelines for different types of workplaces, is that office workers who can work effectively from home should do so over the winter. However, anyone else who cannot work from home should go to their place of work, but employers should consult with their staff to determine who needs to come into the workplace safely taking account of the worker’s journey, caring responsibilities, protected characteristics and other individual circumstances. Extra consideration should be given to those workers at higher risk. 

In addition to this change of position for office workers, a raft of new coronavirus-related legislative measures have now taken effect in England, some of which directly impact on the employment relationship (with slightly different restrictions applying in Scotland, Wales and Northern Ireland). These include that:

• Staff in a wide range of hospitality and retail venues are now required to wear face coverings when working in a part of the premises that is open to the public, and where they come or are likely to come within close contact of any member of the public – but those who are already exempt from the existing face covering obligations, such as because of an underlying health condition, continue to be exempt from this new obligation. However, the offence of failing to wear a face covering when legally obliged to do so is committed by the worker, not by their employer, and so it is the worker’s responsibility to pay the relevant fine. That said, it is an offence for an employer to prevent, or to seek to prevent, a worker who is subject to the requirement to wear a face covering from wearing a face covering, and therefore it is recommended that employers mandate the wearing of face coverings where required
• A wider range of leisure and entertainment venues, services provided in community centres and close contact services must now comply with the COVID-19 Secure requirements as a legal obligation, with fines of up to £10,000 for repeated breaches
• Employers must not knowingly allow or permit a worker, or agency worker, who is being required to self-isolate to attend their workplace, or any other place (except the place where they are required to self-isolate) for any purpose connected to their employment during their self-isolation period. Breach of this provision will result in a fine starting at £1,000 and increasing to £10,000 for repeated breaches. The worker is also now obliged to inform their employer, as soon as reasonably practicable, of the requirement on them to self-isolate, and the start and end dates of their self-isolation period, in circumstances where they would otherwise be required to attend work.

A new advice line for employers who are supporting employees experiencing or at risk of domestic abuse has been launched by domestic abuse charity Hestia. The Everyone’s Business Advice Line, which is being funded by the Home Office, will be a point of contact for employers, advising them on how to approach disclosures of domestic abuse by their employees, particularly in light of coronavirus (COVID-19). With more people working remotely from home due to the pandemic, cases of domestic abuse are rising. The advice line will also assist employers in signposting staff to local specialist domestic abuse services.

The Everyone’s Business Advice Line can be contacted on 07770 480437 or email adviceline.EB@hestia.org and the service is open between 10am and 3pm Monday to Friday. Employers can also download an assets pack from the Hestia website, comprising an information brochure, flyer, infographic and social media graphics.

One in four women and one in six men will experience domestic abuse at some point in their lifetime.
 

The government has published detailed new guidance for employers on the regulations and legal obligations relating to running internal workplace coronavirus (COVID-19) testing programmes, i.e. those which are outside of the NHS Test and Trace service. The guidance covers:

• legislation, regulations and best practice surrounding the testing process, including compliance with the GDPR
• selecting and procuring test kits
• the difference between virus and antibody testing
• what the test results mean
• next steps after a positive or negative test, including communicating results to staff and what an employer can and cannot do with a result
• contact tracing.

The guidance emphasises that the NHS Test and Trace service is for those who are displaying symptoms of coronavirus or who have been advised to take a test by a medical practitioner or public service, so employers must not advise any staff without symptoms to get a test from the NHS Test and Trace service. However, they may offer alternative private provision in accordance with this guidance.

The government has announced that disabled workers who are working from home during the coronavirus pandemic can now benefit from financial support following an extension to the Access to Work scheme. 

Workers can now apply to the Access to Work Scheme for grant funding if they are disabled and need support to work from home because of coronavirus. The grant can help pay for special equipment such as a screen reader or support worker services. If they are travelling into the workplace and, due to their health condition, public transport is not currently a safe option, the grant can now cover taxi fares. This funding can be fast-tracked if the worker is in the clinically extremely vulnerable group. Finally, if the worker is anxious about returning to work and needs additional support, they can also get mental health support through Access to Work with a tailored package for up to nine months.

An Access to Work grant can be applied for online or over the phone: 0800 121 7479. The worker must apply for it; their employer cannot do so.

The government has published two factsheets on redundancy, one for employers and one for employees. 

The fact sheet for employers provides guidance on the support and information available to them from the government’s free “Rapid Response Service”. It advises employers to get in touch as soon as employees are at risk of redundancy, as it can provide a tailored package of free support through the process of redundancy from its network of partners. The fact sheet also links to other governmental and non-governmental sources of useful information on redundancy.

The fact sheet for employees offers guidance on the support and information available to help them find a new job. The document explains where to look for jobs, how individuals can improve their skills, what benefits are available and how claims are made, where advice can be sought on redundancy-related issues and where information can be found on pensions. 

Public Health England (PHE) has updated its guidance to increase the minimum self-isolation period for those with symptoms of coronavirus from seven to ten days, starting from when symptoms first begin. In addition, those who test positive for coronavirus but who are not experiencing symptoms must stay at home for at least ten days starting from the day the positive test was taken, and if they then develop symptoms during this self-isolation period, the ten days must restart from the date their symptoms first appear. 

To correspond with the extended self-isolation period, the Statutory Sick Pay (General) (Coronavirus Amendment) (No. 5) Regulations 2020 came into force on 5 August 2020. The regulations have amended the Statutory Sick Pay (General) Regulations 1982 to confirm that an employee self-isolating in accordance with the updated PHE guidance will be deemed incapable for work and so entitled to statutory sick pay (SSP) for the duration of the extended minimum ten-day period for which they are now required to self-isolate.

The government has published an updated version of form HR1. Where an employer is proposing to make 20 or more redundancies at one establishment within a period of 90 days or less, they must give advance notification of those potential redundancies to the Secretary of State using form HR1. In practice, the form is returned by email to the Redundancy Payments Service. It must be returned at least 30 days before the first dismissal takes effect if between 20 and 99 redundancies are proposed, or at least 45 days before the first dismissal takes effect if 100 or more redundancies are proposed, and before any individual notices of dismissal are issued to employees. A separate form HR1 form needs to be used for each establishment where 20 or more redundancies may occur within a 90-day period, as each establishment or site is treated separately for notification purposes.

The amended form HR1 is slightly shorter but it is now accompanied by a new guidance document for employers which extracts much of the guidance which was previously part of the old form HR1. The guidance includes information on the requirement to notify about potential redundancies, the employer’s legal obligations and how to complete the form.

Failure to comply with the statutory notification requirements without good cause may result in prosecution and an uncapped fine.