25 September 2019 | Comment | Article by Louise Price

Employment law updates: important changes for employers

This feed is updated regularly – keep scrolling down to see all our recent updates.

Recent Government Announcements

22 May 2023

Author: Hanna Davies

On 10 May 2023, the government published a policy paper titled “Smarter regulation to grow the economy” setting out its plan to improve regulations following the UK’s exit from the EU. The policy has set out the following changes which will have an impact on employment law in the UK:

A cap on non-compete clauses
Changes to TUPE
Changes to the Working Time Regulations

It was also announced that the Government plans to scrap the controversial sunset clause in the Retained EU Law (Revocation and Reform) Bill.

Non-Compete Clauses

Non-compete clauses, also known as post-termination restrictive covenants, form part of many employment contracts and are designed to protect businesses once an employee’s employment has come to an end. These clauses limit employees from working for a rival employer or from setting up a rival business.

It can be difficult for non-compete clauses to be enforced. The courts will normally only enforce them if they protect a legitimate proprietary interest of the employer and if the extent of the restriction goes no wider than is reasonably necessary.

Non-compete clauses have undergone a measure of criticism in recent years. In 2020 the Government published a consultation paper exploring possible reforms to these clauses, but no reform had been confirmed until the publication of the policy paper.

In this paper, the Government has announced that the length of non-compete clauses will be limited to 3 months. It is hoped that imposing this limitation will have the effect of widening the talent pool by allowing employees to join rival businesses earlier, meaning that employers have more freedom to grow their business and increase productivity. In return, it is hoped that this will assist in growing the economy.

The full details of these changes have not yet been published; however, the Government has confirmed that it does not intend to interfere with non-solicitation clauses or affect the ability of an employer to place an employee on garden leave. It will also not have an impact on the use of confidentiality clauses. The effectiveness of the proposed changes has however been called into question as employers are likely to try and find other ways of legitimately protecting their interest through, for example, introducing longer notice periods.

It is not clear when these changes will come into force as they will need to be legislated. The Government has confirmed in the meantime that further guidance will be published and that the preliminary legislation on these matters will enter the House of Commons once “parliamentary time allows”.

Changes to TUPE

In the new policy paper, minor changes are planned to the TUPE regime. The purpose of the TUPE regulations is to ensure that employees’ rights are protected when the business or organisation they work for transfers to a new owner. TUPE operates by ensuring that affected staff transfer on the same terms and conditions and that their continuity of service is not affected. There are some strict consultation requirements imposed on employers involved in a TUPE transfer, including the requirement to consult with employee representatives.

The Government has recognised the importance of TUPE regulations but has noted that the process could be simplified. Under the suggested reforms, the requirement to consult will be removed for businesses with fewer than 50 people and transfers affecting less than 10 employees. This means that these businesses will be able to directly consult with the affected employees which it is hoped will reduce the administrative and regulatory burdens on businesses.

Whilst the changes will be welcome to many businesses, particularly those undertaking small transfers, the detail of the reform is still unclear.

Working Time Regulations 1998

Minor changes were also proposed in the policy paper as part of the wider post Brexit reforms.

Under the current Working Time Regulations (WTR) and retained EU case law, employers are required to keep ‘adequate’ records of the hours worked by employees. For employers who do not keep these records, they may face an unlimited fine and/or employment tribunal claims from employees.

The paper has suggested that the need to keep such records will be removed. Whilst this is a welcome change for small businesses, there is a worry that the removal of this protection could result in employees working longer hours with no recourse in the employment tribunal.

The government is due to publish a consultation on these changes in due course.

Holiday Pay

In recent years, holiday pay has become a contentious issue, particularly following the Supreme Court case of Harpur Trust v Brazel. It is therefore no surprise that this also formed part of the policy paper published by the Government.

The paper proposed the introduction of rolled-up holiday pay which is currently an unlawful practice under EU law (although in practice the financial liability can be reduced by employers where there is transparency on payslips).

This approach will be welcomed by organisations which rely on agency and casual workers although the consultation appears to suggest that this could be proposed as an option for all workers.
The paper has also proposed a single annual leave entitlement. Currently, workers are entitled to 4 weeks under the Working Time Regulations and a further 1.6 weeks under UK law. In order to simplify the rules, the Government is proposing to create a single entitlement of 5.6 weeks annual leave. This is unlikely to have a significant impact for employees as most contracts allow for a 5.6 week annual leave entitlement, however, for employers this may reduce some of the administrative burdens.

Retained EU Law (Revocation and Reform) Bill

It was also announced on 10 May that the controversial ‘sunset clause’ will be removed from the Retained EU Law (Reform and Revocation) Bill. The effect of the ‘sunset clause’ was that almost all EU Law would have been revoked at the end of 2023 unless a statutory instrument was passed to retain the specified law. This was subject to criticism due to the legal uncertainty for businesses and employers. The position now is that EU law will remain binding unless it is expressly repealed. The Government has already published some lists of legislation that it intends will be repealed but so far, only some fairly obscure regulations which may apply in the field of Employment law will disappear at the end of the year.

In the house of commons, Kemi Badenoch explained that in uncovering further retained EU legislation, they have been focusing on the reduction of legal risks in preserving the EU laws rather than “meaningful reform”. The hope is that scrapping the ‘sunset clause’ will allow ministers to focus on reforming the laws rather than rushing to keep to the deadline at the end of 2023. It was confirmed that other avenues will be explored to revoke a further 500 pieces of EU legislation.

For further advice on any of the changes outlined above please contact our Employment and HR Services team.

Changes to Immigration Rules published

20 March 2023

Author: Eleanor Bamber

On 9 March 2023, the government published a “statement of changes” to the immigration rules.

Most changes are due to be implemented from 12 April 2023.

Key changes for businesses and employers of migrant workers

To reflect current wage inflation, the minimum salary requirements to sponsor a worker in the UK under the Skilled Worker and Global Business Mobility routes are to be increased as follows:

Skilled Worker – Increase from £25,600 a year to £26,200 a year. Minimum rates to qualify for tradeable points for salary will also increase.
Global Business Mobility: Senior or Specialist Worker – Increase from £42,400 a year to £45,800 a year.
Global Business Mobility: Graduate Trainee – Increase from £23,100 a year to £24,220 a year.
Global Business Mobility: UK Expansion Worker – Increase from £42,400 a year to £45,800 a year.
Scale-up Worker – Increase from £33,000 a year to £34,600 a year.
A new “Innovator Founder” route will replace the Innovator and Start-up routes on 13 April 2023. Whilst this route will be closed to new applicants from 13 April 2023, initial applications under the Start-up route will be allowed to continue until 13 July 2023. This new route is intended for overseas national seeking entry to the UK to establish an innovative business.
A new Electronic Travel Authorisation (ETA) scheme is to be introduced to ensure that everyone wishing to travel to the UK has permission to do so in advance of travel. The ETA scheme will eventually apply to all third country national passengers (including EU nationals) visiting the UK or transiting the UK (including business visitors) who do not currently need a visa for short stays, as well as those using the Creative Worker route for up to three months.

An ETA will not be required by anyone with a UK visa or permission to live, work or study in the UK.

The scheme applies to nationals of Qatar from 15 November 2023 and to nationals from the following countries from 15 February 2024:

Bahrain
Jordan
Kuwait
Oman
Saudi Arabia
United Arab Emirates

The scheme will gradually expand to include additional countries. It is expected to be fully operational by the end of 2024.

For all business immigration queries including assistance with becoming a licensed sponsor, please contact our Employment and HR Services team.

Government awards £1.97 million to support women’s reproductive wellbeing in the workplace.

3 January 2023

Author: Hanna Davies

The Government announced on 9 December 2022 that £1.97 million will be given to 16 organisations across England to support women’s reproductive health in the workplace.

By way of background information, the Voluntary, Community and Social Enterprise (VCSE) Health and Wellbeing fund was established in April 2018 and is run by the Department of Health and Social Care, NHS England, and the UK Health Security Agency. A new scheme is announced annually which lasts for a period of 3 financial years. It was announced that the scheme for 2022 – 2025 will focus on women’s reproductive wellbeing in the workplace resulting in the £1.97 million investment from the Government. This is as part of the wider Women’s Health Strategy published by the Department of Health and Social Care in August 2022 outlining a 10-year plan to improve the health and wellbeing of women in England.

A range of £200,000 – £600,000 will be given to 16 charities including Maternity Action, Fertility Network UK, Sands, and Endometriosis UK to enable the selected charities to develop their projects and campaigns relating to women’s reproductive health.

The aim of this investment is to ensure that employers are better equipped to help women experiencing fertility issues, menopause, pregnancy, and pregnancy loss. Employers will be encouraged to take steps such as introducing a culture of flexible working, workplace policies for issues such as menopause, and supporting women dealing with long-term conditions through providing access to high-quality occupational health services.

Minister Helen Whately stated that they “are supporting women experiencing reproductive health issues – such as pregnancy loss or menopause – to remain in or return to the workplace through the Health and Wellbeing Fund” and that the funding from VCSE is “invaluable and improves the health of thousands of women.”

It is hoped that as a result of the increased support provided by employers, women will be better supported to remain in or return to the workplace and have the confidence to speak openly about their reproductive health with their supervisors if needed.

For any further help or advice on this issue, please contact our Employment and HR Services team.

Flexible working developments

15 December 2022

Author: Harry Orbell

In September 2021, the UK Government published a consultation, called ‘Making flexible working the default’, which closed on 1 December 2021.

The UK Government published its response to the consultation on 5 December 2022. The UK Government has confirmed in its response that it will take forward a number of the proposals, including making the right to request flexible working a day one right, rather than the current position where employees have to accumulate 26 weeks’ service before being able to submit a request for flexible working.

With regard to the proposal to make flexible working a day one right, 91% of all respondents to the consultation were in favour of this. It is believed that this change would help to remove the perception that flexible working is something to be “earned” and would encourage open conversations about flexibility and increase labour market participation and diversity, attract more applicants to open roles and remove barriers that prevent an employee changing jobs. However, UK Government has emphasised that the legislation only confers a right to request flexible working, not a right to have flexible working.

As part of its response, the UK Government also considered whether further changes to the flexible working regime should be implemented. For example, it considered whether the eight business grounds for rejecting a flexible working request remained valid. Following a mixed response as part of the consultation process and given the lack of clarity over an alternative way forward, no changes will be made to these as part of this reform.

Going forward, employers are however required to consult with employees to explore the available options before rejecting a flexible working request, which is consistent with the existing Acas Code of Practice on handling flexible working requests.

It has also been confirmed that employees will now be permitted to make two flexible working requests in a 12-month period (up from the one request currently) and employers will now be required to respond to a flexible working request within two months, rather than the three months they have currently.

In another procedural change, the UK Government has confirmed that the new legislation will remove the requirement for an employee to set out how the employer might deal with the effects of granting their flexible working request.

Whilst the government’s response to the consultation provides welcome clarification of the UK Government’s intentions in relation to this much-discussed area of law, the timescale for the implementation of these changes is still unclear. The UK Government has stated that the relevant legislative changes will be introduced “when Parliamentary time allows”. As the Employment Relations (Flexible Working) Bill is already going through Parliament, we may see some of these changes brought into effect sooner than some would expect. It would be surprising if these changes were made without the right to request flexible working being made a day one right via secondary legislation at the same time.

It will be interesting to see whether removing the minimum service requirement for making a flexible working request or actively requiring employers to have discussions with employees will lead to a significant increase in the number of flexible working applications being made or approved. It is also worth noting that the consultation and proposed amendments to the law relate to the statutory right to request a formal amendment to an employment contract only. The UK Government has confirmed that it will develop enhanced guidance to raise awareness and understanding of how to make and administer temporary requests for flexible working and we expect to see a consultation on this announced shortly.

If you require any assistance updating your flexible working policies in light of these proposed changes, please contact our Employment and HR Services team.

Unfair dismissal: Latest case law on the “vanishing” dismissal

16 November 2022

Author: Harry Orbell

In the latest case considering the issue of a “vanishing” dismissal, the EAT considered whether an employee whose dismissal was overturned on appeal could claim unfair dismissal.

The facts

Mrs Marangakis, a part-time Sales Assistant at Iceland, was dismissed for gross misconduct in January 2019. Mrs Marangakis appealed the decision to dismiss her, stating “it is my wish that I be reinstated back into the position that I held before this alleged incident took place”. Mrs Marangakis subsequently changed her mind during the appeals process, on the grounds that she felt mutual trust had been broken, and so she stated during an appeal hearing that “I don’t want to work for Iceland, I want apologies and compensation”.

Following the appeal hearing, Mrs Marangakis’ dismissal was overturned and Iceland wrote to her to inform her she was to be reinstated with continuity of service and backpay. A final written warning was substituted for the original decision to dismiss. However, Mrs Marangakis did not return to work and so she was eventually dismissed again in July 2019 due to her failure to attend.

Mrs Marangakis pursued an unfair dismissal claim relating to the January 2019 dismissal, but she did not pursue a claim about the later dismissal in July. When asked, the claimant specifically stated that she was not bringing a claim of constructive dismissal. The respondent contended that the effect of allowing the appeal was that Mrs Marangakis was reinstated in employment and so the original dismissal disappeared and could not result in a claim of unfair dismissal. The Tribunal agreed with the respondent and ruled that the dismissal had “vanished” in these circumstances and as such, they did not have jurisdiction to hear Mrs Marangakis’ unfair dismissal claim. Mrs Marangakis appealed the decision.

The EAT (HHJ Tayler, sitting alone) rejected the appeal. It was common ground that if an appeal against dismissal is successful, the parties are bound to treat the dismissal as not having occurred, irrespective of the employee’s subjective wishes. Only if an appeal is withdrawn can this outcome be avoided. The determination of whether there is a withdrawal from an appeal is a matter of objectively construing the employee’s words. It does not necessarily follow from a statement that a person does not wish to return to work that they do not want to pursue an appeal. In reaching this decision, the EAT took into account, among other things, that Ms Marangakis could have unequivocally stated that she was withdrawing her appeal and ceased to participate in the appeal. In the circumstances, the tribunal was entitled to conclude that, viewed objectively, Ms Marangakis did not indicate a decision to withdraw from the appeal.

What does this mean for employers?

The concept of a “vanishing dismissal”, on an appeal succeeding, is nothing new. If a person appeals against dismissal, succeeds in the appeal and is reinstated, the original dismissal “disappears”, with the consequence that it cannot then found a claim of unfair dismissal. The legal underpinning of this concept was also considered in Folkestone Nursing Home Ltd v Patel, whereby the EAT also considered that the dismissal has “vanished” upon successful appeal and as such, there was no dismissal which could give rise to an unfair dismissal claim. This case of Marangakis v Iceland Foods Limited is therefore further authority on this established legal principle.

If the employee does not return to work when a dismissal has been overturned, employers should consider carefully how to deal with the situation moving forward. It will be important not to do anything that might trigger a potential constructive dismissal claim or give rise to a new unfair dismissal claim. Potential options for employers could include treating this as a resignation or going through the disciplinary procedure and ultimately dismissing the employee for non-attendance.

For any further help or advice on this issue, please contact our Employment and HR Services team.

Government announces £122 million for NHS to encourage people receiving mental health support to enter or stay in employment.

14 October 2022

Author: Hanna Davies

World Mental Health Day is recognised on 10 October each year to raise awareness of mental health illnesses and to encourage efforts to support mental health. This year’s theme was ‘make mental health and wellbeing for all a global priority’.

The most common mental health issues in the workplace are stress, depression and anxiety all of which have a serious impact on an individual’s wellbeing and can affect an employee’s productivity and engagement. The Mental Health Foundation has found that 12.7% of sick days in the workforce are due to mental health related illnesses and 1 in 6.8 people struggle with mental health problems in the workplace.

In an attempt to tackle this, and in response to the increased number of people who are economically inactive since the pandemic, the Government announced on Monday that £122 million will be invested in the NHS to help people receiving mental health support to return to or to enter employment. It will fund the recruitment of 700 employment advisers with the hope of supporting 100,000 people per year. The aim is that employment advisors and therapists will work together to provide the individual with the skills and tools needed to find suitable work. In turn this will encourage more people into work and consequently help stimulate economic growth.

The Health and Social Care Secretary, Thérèse Coffey, stated:

“Good physical health and mental wellbeing of the nation is also good for the economic health of the nation and this government is committed to supporting those not working due to ill health.

Giving people receiving mental wellbeing support access to an employment adviser will help them start, stay, and succeed in work – improving their wellbeing and resilience as well as growing our economy.”

The scheme is currently undertaken in Cheshire and the Wirral but will be rolled out across the country over the next three years.

It’s important to note that employers have a duty of care to support employees’ wellbeing. ACAS have offered advice on how to support a positive working environment where mental health is talked about openly. This includes encouraging one to one catch ups with managers and arranging training and workshops on how to improve mental health and how to spot the signs of an individual suffering. Employers should also seek to create a mental health strategy which includes policies and practices to promote positive mental health in the workplace.

Those who are suffering with mental health issues are encouraged to seek support from their GP. There are also free services available such as Samaritans, Shout Crisis and Childline.

For any further help or advice on this issue, please contact our Employment and HR Services team.

IR35 rules

7 October 2022

Author: Eleanor Bamber

In the “mini budget” on 23 September 2022, the Chancellor announced that the IR35 reforms will be repealed on 6 April 2023.

The off-payroll working rules (IR35 rules) were initially introduced in 2000. Further reforms to the IR35 rules were implemented in 2017 in the public sector and then in 2021 in the private sector. The purpose of the IR35 regime and the subsequent reforms was to clamp down on the issue of underpayment of tax by contractors working through personal service companies (PSCs). Under the reforms, the burden of determining how the contractor’s fees ought to be taxed shifted from being the responsibility of the contractor’s PSC, to the “end user”, in other words the “client”.

The IR35 reforms have been criticised in the past for being overly complicated and costly. The tax burden has been placed on businesses meaning that it is the businesses themselves that have been taking the bulk of the tax risk. If the rules were not followed correctly, business faced severe penalties. Additionally, there was criticism that contractors were being over-taxed by HMRC. Due to these criticisms, Liz Truss promised a review of the IR35 rules during her campaign to become Prime Minister.

In the Treasury’s Growth Plan, Kwasi Kwarteng announced that, as of 6 April 2023, contractors who provide their services via an intermediary will once again be responsible for determining employment status and will shoulder the burden on deciding which rate of income tax and NICs to pay. The Chancellor’s reasoning for this is to remove the complexity and the cost from businesses and to promote growth in the economy. He stated “to achieve a simpler system, I will start by removing unnecessary costs for business. We can simplify the IR35 rules, and we will. In practice, reforms to off-payroll working have added unnecessary complexity and cost for many businesses.”

Despite the fact that businesses have spent time and money complying with the IR35 reforms, it is likely to be a welcomed change by businesses given the reduction in due diligence and liability that the repeal will have. However, there is also concern that this could lead to increased costs for businesses as individual contractors may be forced to increase their own costs given the additional due diligence burden they face as well as seek to agree stronger commercial indemnities to reflect where the tax liability burden will fall going forward.

Following the announcement there have been calls for clarity on how these changes will affect businesses and whether there will be tools such as CEST available to assist contractors in determining their employment status. However, it is important to note that despite the fact that IR35 reforms from 2017 and 2021 are being repealed, the IR35 rules itself will remain with the Government promising “to keep compliance closely under review”.

For any further help or advice on this issue, please contact our Employment and HR Services team.

Public Sector Exit Payments

8 September 2022

Author: Christine Bradbury

The Government has launched a consultation exercise seeking views on its proposals to:

introduce a new administrative controls process for public sector exit payments which exceed £95,000; and
amend the existing procedure that applies to “special” severance payments, namely those which exceed an employee’s standard statutory or contractual entitlements.

It is expected that with clearer guidance for public sector employers and the introduction of an expanded approvals process involving the Secretaries of State and, in some cases, also HM Treasury, there will be greater scrutiny of high value exits and occasionally viable alternatives to staff exits identified, potentially generating savings to the taxpayer.

Guidance issued by the Government sets out

the criteria to be considered before deciding an exit is necessary and
lists the category of payments which should be included when calculating the total exit payment to be made to an employee.

The concept of requiring consideration to be given to the recovery of special severance payments “across central government”, where an individual receives such a payment and is re-employed in the public sector, is also covered. Additional reporting requirements to HM Treasury are also envisaged, aimed at improving the consistency and accountability of decisions to exit employees at a cost to the taxpayer.

It is worth noting that the new regime will not apply to bodies under the devolved administrations. However, where central government bodies working on reserved functions, which are normally subject to other kinds of administrative control from HM Treasury such as the controls on senior pay, have roles located within Wales, these roles will be in scope of the new process.

The consultation exercise will run until 17^th October 2022.

For further advice on any of the changes outlined above please contact our Employment and HR Services team.

Landmark ruling on holiday pay for part-year workers

22 July 2022

Author: Kate Walsh

The Supreme Court recently published its long-awaited decision in the case of Harpur Trust v Brazel. This case concerns the issue of how to calculate holiday pay for individuals who have a permanent or umbrella contract but only work part of the year. Term-time only, or part-year contracts are common within the education sector but may feature in other sectors too, where the nature of work is more irregular and there is a reliance on casual or zero-hour contracts.

Many organisations may be familiar with the “accrual” method for calculating holiday pay. This method requires organisations to identify the number of hours worked and multiply this by 12.07% to calculate the individual’s holiday entitlement, (12.07 % is the proportion that 5.6 weeks of annual leave bears to the total working year). From 2011 onwards, Harpur Trust adopted the accrual method for calculating Mrs Brazel’s holiday pay. Mrs Brazel argued that the accrual method resulted in her receiving less holiday pay than she would have received under the Working Time Regulations. Both the Court of Appeal and Supreme Court agreed. The accrual method was not a method prescribed in statute and agreed with Mrs Brazel that her holiday entitlement should be calculated in accordance with the Working Time Regulations (i.e. identifying the individual’s average weekly pay and multiplying by 5.6 weeks).

This ruling has significant implications for employers engaging workers under part-year contracts and will inevitably lead to tension among colleagues. Full-time workers may receive the same holiday pay as those working part-year. Leaving employee relations aside, the decision of course carries significant cost consequences and HR teams should now consider any potential liability for unlawful deductions claims. Remember, there is a two-year backstop limiting the amount of holiday pay which can be recovered in most unlawful deductions claims.

Going forward, HR teams may also wish to review their contracts and consider whether the use of fixed-term contracts may be more appropriate for certain roles.

For further advice on this case or the use of fixed-term contracts, please contact our Employment and HR Services team.

Annual Increase in Compensation Limits

4 March 2022

Author: Sali Owens

The Employment Rights (Increase of Limits) Order 2022 has been laid before parliament. Both employers and their advisors need to be aware of the increased compensation limits.

In order to correctly calculate an employee’s basic award, or redundancy payment employers will need to be mindful of the increase in weekly pay cap. Likewise, the statutory increase in the compensatory award needs to be taken into account when considering the litigation risk of any dismissal.

Below we have summarised the core compensation increases.

Date	Basic award	Compensatory award	Week’s pay
6 April 2022 – 5 April 2023	£17,130	£93,878	£571
6 April 2021 – 5 April 2022	£16,320	£89,493	£544

For further advice on any of the changes outlined above please contact our Employment and HR Services team.

Holiday pay

2 February 2022

Author: Eleanor Bamber

The Court of Appeal has handed down an extremely significant decision in the case of Smith v Pimlico Plumbers Ltd. Many of you will be familiar with Mr Smith successfully achieving a Supreme Court decision that he was a “worker” for the purposes of the Working Time Regulations.

This recent case has however focused not on his employment status (which was settled), but on whether (and to what extent) he could claim for annual leave that he had taken during his employment with Pimlico Plumbers but which had been unpaid (on the basis that the company did not recognise that he had any right to be paid as it did not recognise him as a “worker”).

The Court of Appeal has now decided that Mr Smith was entitled to be paid (and could recover compensation for) all the unpaid leave he took whilst with Pimlico Plumbers relating to the annual 4 weeks’ entitlement under the Working Time Directive and, importantly, stretching back over several years. This decision has essentially extended the principle that was set out in King v Sash Windows. In that case, Mr King was permitted to recover compensation for the untaken annual leave to which he should have been entitled during his employment with Sash Windows. The difference with Mr Smith is that he had in fact taken periods of annual leave, he had just not been paid for them.

This is a critical decision for a number of reasons:

The 3 month deadline for bringing the claim ran from the termination of Mr Smith’s employment, not from the date of the last “non-payment” of annual leave – this meant his claim was in time whereas he would have been out of time had the deadline run from the date of the last “non-payment”.
Mr Smith was also entitled to look back over the full 6 year period of his employment rather than be limited to the 2 year “backstop” imposed by the Deduction from Wages (Limitation) Regulations 2014 – these regulations were introduced to limit the past recovery for unlawful deduction from wages claims.

The Court of Appeal has also cast doubt on the ruling in Bear Scotland v Fulton that a ‘series’ of deductions for the purpose of s.23 of ERA is broken by a gap of three months or more between under-payments. Instead, the Court confirmed (obiter) that it preferred the ruling in Chief Constable v Agnew (a case heard in Northern Ireland) which held that a three-month gap did not break a series of under-payments of wages.

The implications of this decision are enormous given the potential for workers to recover significant sums of unpaid annual leave unconstrained by arguments about being limited to 2 years’ back pay or failing to establish an unbroken “series of deductions”.

The “gig” economy is the most obvious place where the impact of this may be felt but this should concern all employers who may still be unclear about the status of members of the workforce and entitlement to paid annual leave more generally.

We will continue to digest the effects of the decision. To read the full judgment click here.

For further advice on any of the changes outlined above please contact our Employment and HR Services team.

Relaxation of Work from Home Rules

21 January 2022

Author: Rhiannon Dale

On 14 January 2022, First Minister, Mark Drakeford announced that with effect from 28 January 2022, provided the downward trend continues, workers are no longer required to work from home in Wales and the controversial fines for not working from home will be abolished. The First Minister stated that whilst working from home will remain “important”, it is no longer essential. Businesses, employers and other organisations must however once again undertake a specific coronavirus risk assessment and take reasonable measures to minimise the spread of COVID-19 in the workplace.

On 19 January 2022 Prime Minister, Boris Johnson, announced the end of “Plan B” restrictions in England. This included removing the guidance encouraging people to work from home if they could, with immediate effect. The government has stated that employees should make contact with their employers to discuss returning to the workplace.

For further advice on any of the changes outlined above please contact our Employment and HR Services team.

Reintroduction of Statutory Sick Pay Rebate Scheme

23 December 2021

Author: Eleanor Bamber

Rishi Sunak has announced that the government is reintroducing the Statutory Sick Pay Rebate Scheme (SSPRS).

This will be a temporary scheme to support employers facing heightened levels of sickness absence due to COVID-19.

The SSPRS will refund small and medium-sized employers’ COVID-related SSP costs for up to two weeks per employee. This is limited therefore to employers with fewer than 250 employees.

Employers will be eligible for the scheme if they:

are UK-based
employed fewer than 250 employees as of 30 November 2021
had a PAYE payroll system as off 30 November 2021
have already paid their employees’ COVID-related SSP

Employers will be able to claim the costs for up to two weeks of SSP per employee that has to take time off because of COVID-19. This two-week limit will be reset so an employer will be able to claim up to two weeks per employee regardless of whether they have claimed under the previous scheme for that employee.

The scheme will be reintroduced so that employers can claim for COVID-related sickness absences occurring from 21 December 2021 onwards. Further guidance can be found here.

For further advice on any of the changes outlined above please contact our Employment and HR Services team.

Workers in Wales can be fined for not working from home

22 December 2021

Author: Rhiannon Dale

In response to the continued rise in Covid-19 cases in Wales, the Welsh Government has introduced new regulations amending the Health Protection (Coronavirus Restrictions) (No. 5) (Wales) Regulations 2020 (S.I. 2020/1609 (W. 335) (the Regulations) to reinforce its message that working from home is the most effective way of minimising the risk of exposure to coronavirus in workplaces.

One of the most significant amendments to these Regulations that has received a great deal of press attention over the last day or so is that people can be fined for not working from home when they are able to.

Workers in Wales have been advised to work from home since the start of the pandemic, however from 20 December 2021 the guidance has once again became a legal requirement under the Regulations.

The Regulations now require employees to work from home “where reasonably practicable to do so” and introduce a specific offence of “failing to work from home”. This new offence is punishable on summary conviction by a fine. The amount of the fine is £60, or £30 if it is paid before the end of the period of 14 days following the date of the notice. The fine may be higher in cases where the individual has previously received a fixed penalty notice under the Regulations.

Employers can also face fines under the Regulations if they continually fail to allow their staff to work from home as a business offence, unless there is a clear business need that would make working from home impractical, in line with their duties to take reasonable measures. The amount of the fixed penalty is £1,000 but can increase to up to £10,000 in the case of repeated offences. Further guidance can be found here.

For further advice on any of the changes outlined above please contact our Employment and HR Services team.

Temporary change to Fit Notes

21 December 2021

Author: James Harris

Due to the increased pressure GPs are expected to be under in the next couple of weeks helping assist with the Covid-19 vaccine booster programme the Government has introduced the Statutory Sick Pay Medical Regulations 2021. The new regulation has modified the Statutory Sick Pay (Medical Evidence) Regulations 1985. Under the updated regulation an employee is not required to provide medical information relating to the first 28 days of any spell of incapacity for work.

Employers will not be able to require an employee to provide medical evidence, such as a fit note from a GP within the first seven days of the sickness absence, but they are able to after this period. The aim is to stop employees from visiting their GP for medical evidence for the purposes of statutory sick pay.

The amendment is limited to periods of sickness which either start during the period 17 December 2021 to 26 January 2022, or which commence prior to 17 December 2021 but which have not lasted more than seven days on that date. The amendment will therefore not apply to periods of incapacity which begin after 26 January 2022.

For further advice on any of the changes outlined above please contact our Employment and HR Services team.

Updated Acas Guidance on use of ‘Fire and Rehire’

2 December 2021

Author: Eleanor Bamber

Following its review of the “fire and rehire” practices in June 2021, Acas has now published updated guidance on making amendments to employment contracts. This topic has received a great deal of press attention this year, but the government has confirmed that it does not intend to legislate in order to prevent employers from firing and rehiring when seeking to make amendments to employees’ contracts. Instead, the government asked Acas to provide clearer guidance to assist employers in exploring alternative options when making contractual amendments.

On 11 November 2021, Acas published updated guidance on amending employment contracts. The guidance reminds employers that “fire and rehire” is an extreme step and employers should look at alternative options first. Any hasty decisions can lead to tensions and possibly tribunal claims if employees feel they have not had opportunity to inform decisions around any proposal or do not support changes. If the process is not managed well employers risk losing valued employees and damaging their reputation. Employer’s also risk legal claims or industrial actions where there is a trade union involved.

Acas advises employers to work collaboratively with employees when consulting and make every effort to reach an agreement on any contractual amendments. If both sides are struggling to reach an agreement, the Acas advice includes tips on how to:

Keep discussions constructive.
Explore alternative options to reach a compromise.
Stay focused on trying to reach consensus

If you are considering making changes to employees’ contracts, we would strongly advise you to seek legal advice before embarking on this process. For further advice on any of the changes outlined above please contact our Employment and HR Services team.

Tribunal erred in focusing on adverse effects of claimant’s avoidance behaviours rather than impairments

30 November 2021

Author: Eleanor Bamber

The EAT has held that a tribunal erred in focusing on the behaviour adopted by a claimant in an attempt to manage her conditions when considering whether those conditions had an adverse effect on her day-to-day activities. The claimant suffered from epilepsy and vitiligo and avoided coffee, alcohol, cosmetics, cleaning products, sunlight and all medications (including those prescribed by her physicians to manage her conditions), believing that they would adversely trigger her conditions. However, there was no medical evidence to support the claimant’s beliefs, and she was acting contrary to medical advice in refusing to take medication.

The EAT held that the question of whether a claimant’s impairments had an adverse effect on their ability to carry out normal day-to-day activities was an objective one and could not be determined by a claimant’s subjective beliefs about how to manage their conditions. In this case, the claimant only relied on physical, not mental, impairments. The tribunal had to disregard the claimant’s coping mechanisms, even though her belief that they were necessary was strongly held. It should have considered the impact the actual conditions had on the claimant’s day-to-day activities, leaving aside the impact of her avoidance behaviours. The EAT remitted the question of disability to a fresh tribunal, noting that this was a novel point of law on which it believed there was no previous case law.

For further advice on any of the changes outlined above please contact our Employment and HR Services team.

Administrator can be prosecuted personally for failure to notify Secretary of State of collective redundancies

22 November 2021

Author: Louise Price

In R (on the application of Palmer) v Northern Derbyshire Magistrates’ Court [2021] EWHC 3013 (Admin) (Divisional Court), it was decided that an English court had jurisdiction to entertain the prosecution of an employer’s directors or officers under the Trade Union and Labour Relations (Consolidation) Act 1992 Pt IV s.194(3) for conniving in the employer’s failure to give notice to the Secretary of State of a proposal to carry out collective redundancies where the affected employees were in Scotland but the proposal had been formed in England.

Further, a prosecution could be brought against an administrator for that offence: an administrator was an officer of the company for the purposes of section 194(3).

The sole director of a company and one of its administrators applied for judicial review of decisions made by a district judge in proceedings brought against them under the Trade Union and Labour Relations (Consolidation) Act 1992 Pt IV section 194(3). They were alleged to have connived in, consented to or negligently failed to prevent a failure by the company to give notice to the Secretary of State of proposed collective redundancies affecting employees in Scotland in accordance with section 193(1).

The application was refused.

Where the employer was a body corporate, the employer and its directors were different legal personalities. The employer was liable under section 194(1) as a result of the acts or omissions of its agents, but those agents could also be liable, under section 194(3), if they had connived in the employer’s 194(1) offence. That made them liable not for conniving in their own acts, but for conniving in the offence committed by the corporate entity.

An administrator could be prosecuted under section 194(3). Parliament must have intended that anyone with responsibility for the day-to-day control of a corporate employer should be capable of being fixed with personal liability for the employer’s failure to give the statutory notices which they had brought about. Administrators were officers of the company in this context: they managed the company by virtue of the office and had the specific power to dismiss its employees.

Read the Judgment here.

For further advice on any of the changes outlined above please contact our Employment and HR Services team.

Firefighter’s standby time which could be used for other professional activities was not working time under the Working Time Directive

17 November 2021

Author: Rhiannon Dale

The ECJ has considered whether a part-time firefighter’s standby time, during which he could be called back to emergency duties in no less than ten minutes, should have been classified as working time under the Working Time Directive (WTD), even though he was permitted to work as a self-employed taxi driver during such periods.

The firefighter was required to be on standby 24 hours a day, seven days a week (except during periods of annual leave). He was required to participate in at least 75% of the fire brigade’s interventions. He argued that this prevented him from devoting himself to his family and social activities as well as to his activities as a taxi driver. He alleged that this amounted to a breach of the rules on daily and weekly rest, and maximum weekly working time, under the WTD and the Irish implementing legislation. The employer, Dublin City Council, argued that retained firefighters are not required to remain in a particular place when on standby, and so this was not working time. Further, if a retained firefighter did not arrive at the fire station within the appointed time, they simply were not paid; there were no other consequences.

The ECJ concluded that the standby time would not be classified as working time, provided that the limitations imposed on the firefighter did not significantly affect his ability to manage his own time during the period. This decision can be contrasted with another recent decision of the ECJ, Dopravni XR v Dopravní podnik hl m Prahy (Case C-107/19) EU:C:2021:722, where the court held that a rest break during which a firefighter could be called back to work on two minutes’ notice should be classified as working time under the WTD.

The question for the referring court was whether, during the standby time, the firefighter was subject to constraints which, objectively and significantly, limited his ability to freely manage the time during which his services as a retained firefighter were not required. The fact that he was not obliged to participate in all emergency call-outs, and that he was free to carry out another professional activity during the standby time, suggested that he was not significantly constrained in this way.

For further advice on any of the changes outlined above please contact our Employment and HR Services team.

Increases to the National Living Wage and National Minimum Wage from 1 April 2022

28 October 2021

Author: Emily Thomas

The Chancellor, Rishi Sunak, announced on 27 October 2021 when delivering the Autumn 2021 budget that there would be increases to the National Living Wage and National Minimum Wage from 1 April 2022 as follows:

23 and over – £9.50 (currently £8.91)

21 to 22 – £9.18 (currently £8.36)

18 to 20 – £6.83 (currently £6.56)

Under 18s – £4.81 (currently £4.62)

Apprentice rate – £4.81 (currently £4.30)

Employers will need to make sure they are aware how these increases will impact their staff and take the new rates into account when preparing budgets for the next financial year.

It is important to remember that from 1 April 2021 the National Living Wage was extended to 23 and 24 year olds. It would be wise for employers to make sure that their systems flag when employees reach the next relevant age bracket so they can ensure pay is increased to avoid any inadvertent breaches of the NMW legislation.

In addition to having to pay employees arrears for what should have been paid to them, employers can be face significant financial penalties of up to 200% of arrears for National Minimum Wage breaches, which are paid to the government, and may face criminal prosecution in some circumstances. HMRC also regularly “names and shames” employers who breach NMW requirements.

For further advice on any of the changes outlined above please contact our Employment and HR Services team.

COVID-19 Statutory Sick Pay (SSP) rebate scheme ending

27 September 2021

Author: Rhiannon Dale

From 30 September 2021 the COVID-19 Statutory Sick Pay (SSP) rebate scheme will end.

Since March 2020 small and medium sized businesses have been able to reclaim sick pay from the government where employees are unable to work because they have COVID-19, or have been required to self-isolate due to being a close contact of someone who has tested positive for COVID-19.

Employers have until 31 December 2021 to claim for periods prior to the closing date. From 1 October 2021 employers will have to cover the cost of SSP, currently £96.35 per week for up to 28 weeks if an employee if off work due to COVID-19.

The suspension of the three day waiting period for payment of SSP, which allowed employers to avoid paying SSP for the first three days of the illness (where it was related to COVID-19) has not been repealed. This means employers will continue to have to pay SSP from the first day an employee is off work due to COVID-19. However, SSP is only payable if the employee has been required to self-isolate for at least four days. If the employee receives a negative COVID-19 test result within the first three days of self-isolation, meaning that they are not required to isolate any further, that absence technically would not form part of a period of incapacity for work.

It appears however that the provisions relating to payment ofSSPfor those self-isolating will extend beyond September 2021 and will continue to apply until 24 March 2022. The government stated in itsCOVID-19 Response: Autumn and Winter Plan 2021that it had decided that it was necessary to extend Regulations and will review them in March 2022. It stated that “Self-isolation will remain crucial in breaking chains of transmission throughout autumn and winter“, and so it seems likely that the government will continue to support self-isolation by the provision ofSSP through the winter months. However, the government has amended the COVIDSSPprovisions numerous times, often at little or no notice, and so it is possible that they will be amended or revoked again with a similar time scale.

The Statutory Sick Pay (Coronavirus) (Funding of Employers’ Liabilities) (Closure) Regulations and the Statutory Sick Pay (Coronavirus) (Funding of Employers’ Liabilities) (Northern Ireland) (Closure) Regulations 2021 (legislation.gov.uk)

For further advice on any of the changes outlined above please contact our Employment and HR Services team.

The Coronavirus Job Retention Scheme (CJRS) comes to an end in September 2021

15 September 2021

Author: Sali Owens

The Coronavirus Job Retention Scheme (CJRS), better known to many as “furlough”, first introduced in March 2020, will finally come to an end after numerous extensions on 30 September 2021. The deadline for claims under the CJRS is 14 October 2021.

The CJRS enabled employers whose businesses were adversely affected by the effects of the COVID-19 pandemic to place employees on furlough and reclaim up to 80% of their wages (up to £2,500 per month) from the government. The CJRS has been wound down over the last couple of months, with employers only able to claim up to 60% of wages from 1 August 2021.

There is no regulated process for ending furlough unless the furlough agreement specifies one. Employers with staff still on furlough, should urgently consider whether there is sufficient work available for previously furloughed employees to do. If there is not, they should urgently either commence redundancy consultations and/or consider whether there are any other means of achieving sufficient cost reductions, for example, by way of introducing their own furlough equivalent schemes, utilising lay off clauses or reductions in pay / hours, reduced benefits. As always, those employers who consult with their staff, and are prepared to consider creative solutions to staffing issues, are likely to minimise the risks of tribunal claims and retain a motivated and productive workforce.

If employers are able to welcome furloughed employees back to the workplace, they should consider writing to employees in good time outlining:

Any changes to working environments, such as, Covid risk assessments, face covering or vaccination policies and social distancing rules.
Updating employees with any changes to working patterns or conditions such as flexible hours / hybrid working.
When employees are required to return to work and on what terms.

Employers may find the Acas guidance helpful in this regard.

For further advice on any of the changes outlined above please contact our Employment and HR Services team.

Covid-19 adjusted right to work checks extended until 20 June 2021

13 May 2021

Author: Eleanor Bamber

The Home Office has issued further guidance and confirmed that the temporary COVID-19 adjusted right to work checks will now end on 20 June 2021 (rather than 16 May 2021 as had been originally announced). From 21 June 2021 employers will need to revert to face to face and physical document checks as set out in legislation and guidance.

This extension is aligned with the easing of lockdown restrictions and social distancing measures.

The following temporary changes were made on 30 March 2020 and will now remain in place until 20 June 2021 (inclusive):

checks can currently be carried out over video calls
job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals
employers should use the Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents

Checks continue to be necessary and employers must continue to check the prescribed documents set out in right to work checks: an employer’s guide or use the online right to work checking service. It remains an offence to knowingly employ anyone who does not have the right to work in the UK.

https://www.gov.uk/guidance/coronavirus-covid-19-right-to-work-checks

For further advice on any of the changes outlined above please contact our Employment and HR Services team.

Update on Vento bands

30 March 2021

Author: Leah Ellison

The Presidents of the Employment Tribunals of England and Wales and in Scotland have issued new guidance updating and increasing the Vento bands.

Claimants presenting discrimination or whistleblowing claims on or after 6 April 2021 will be eligible to claim the following by way of compensation for injury to feelings:

Lower band of £900 to £9,100 for less serious cases;
Middle band of £9,100 to £27,400 for cases that do not merit an award in the upper band;
Upper band of £27,400 to £45,600 for the most serious cases; and
The most exceptional cases capable of exceeding £45,600.

An award for injury to feelings is entirely at the tribunal’s discretion. In determining whether an award should be made, and if so in what band, the tribunal will consider the seriousness of the treatment and the degree of the impact on the employee.

For further advice on any of the changes outlined above please contact our Employment and HR Services team.

Is there a right to carry overpayment for annual leave where the leave taken was unpaid?

22 March 2021

Author: Eleanor Bamber

“No” said the Employment Appeal Tribunal in the case of Smith v Pimlico Plumbers Ltd.

In this case, Mr Smith (who had been found to be a “worker” by the courts) had worked for Pimlico between 2005 and 2011 and routinely taken annual leave around Christmas, summer and bank holidays. These were taken unpaid.

Mr Smith brought a claim to the Employment Tribunal in August 2011 for unpaid holiday pay that had accrued throughout his almost 6-year engagement by Pimlico.

The Tribunal dismissed his claim on the basis that it was out of time.

For further advice on any of the changes outlined above please contact our Employment and HR Services team.

Shielding to end from 1 April

19 March 2021

Author: Eleanor Bamber

Public Health England has now followed the position already announced in Wales, that shielding is to come to an end from 1 April 2021. This is to reflect falling rates in recorded cases of Covid-19 and a decline in hospital admission.

For further advice on any of the changes outlined above please contact our Employment and HR Services team.

UK Supreme Court rules that Uber drivers are workers

19 February 2021

Author: Emily Thomas

Today, the Supreme Court has handed down its decision in Uber v Aslam. Unsurprisingly, the Supreme Court has reached the same decision as earlier courts that Uber drivers are ‘workers’ rather than self-employed.

The key points to note are as follows:

A Tribunal should not be bound by what is stated on the relevant documentation. Instead, it should consider the reality of the relationship between the parties. Following this approach, the Tribunal was permitted to find that Uber drivers are ‘workers’.
Uber drivers are ‘workers’ from the time in which they switch on their apps and are available for work in their area until they switch it off at the end of their working day.

This case confirms that Uber drivers are entitled to claim minimum wage (including backpay). The minimum wage which they receive is to be based upon their entire working day as opposed to just when they have a rider in their vehicle.

Uber drivers can also claim 5.6 weeks’ paid annual leave each year, rights to rest breaks and will have whistleblowing rights (although will not be entitled to all employment rights such as redundancy pay and the right to bring a claim for unfair dismissal).

This judgment is yet further confirmation about the direction of travel in relation to protections for the many millions who work in the gig economy. It will have wide implications, not just for Uber, but for a large number of companies employing a similar business model. These ramifications not only include the prospect of higher employment costs going forward but potential claims for compensation which may now materialise.

Please click here for further information.

For further advice on any of the changes outlined above please contact our Employment and HR Services team.

Public Sector Exit Payment Cap Revoked

19 February 2021

Author: Emily Thomas

On 12 February 2021, HMRC announced that the Public Sector Exit Payment Regulations 2020 (the Regulations) are to be revoked. The Regulations, which placed a cap of £95,000 on exit payments made to employees departing from public bodies, have faced scrutiny since they came into force on 4 November 2020.

Commentators had raised various concerns about the scope of the Regulations and there have been various legal challenges to the regulations from local government organisations and trade unions. The inclusion of the pension strain within the cap, in particular, had raised concern as it was claimed this would have had a detrimental impact on public sector employees who are not necessarily the ‘highest earners’ which the Regulations sought to target.

The government seems to have now acknowledged the concerns raised about the flaws in the Regulations and has issued a Treasury Direction to suspend them whilst the formal revocation process takes place. The government has also published Guidance Notes which states the following:

“2.1 If you have been directly affected by the cap whilst it was in force, you should request from your former employer the amount you would have received had the cap not been in place by contacting your employer directly. Employers are encouraged to pay to any former employees to whom the cap was applied the additional sums that would have paid but for the cap.”

The Guidance Note also makes it clear that it is an expectation of HMRC that employers will pay the additional sums outlined above to employees who exited between 4 November 2020 and 12 February 2021.

The Guidance Note can be accessed by clicking here.

The Local Government Pension Scheme Regulations had been expected to be amended this year to bring them into line with the Regulations. The consultation in relation to these completed at the end of last year so it remains to be seen whether any changes will be taken forward in light of the revocation of the Regulations, as well as whether any future changes are proposed to the Regulations themselves with a view to reintroducing them in some amended form.

For further advice on any of the changes outlined above please contact our Employment and HR Services team.

New Welsh Government Legislation for Employers

19 January 2021

Author: Rhiannon Dale

On Friday, the First Minister announced that the Welsh Government was introducing new legislation in the form of an amendment to The Health Protection (Coronavirus Restrictions) (No. 5) (Wales) Regulations 2020 to help make workplaces safer during the ongoing Covid-19 pandemic.

All employers who employ more than 5 or more staff are now required to undertake a Covid-19 risk assessment whenever the Coronavirus Alert levels change in Wales.

Although it has always been best practice in accordance with existing health and safety legislation to have a Covid-19 risk assessment in place, the Welsh Government is now mandating that one must be carried out. The risk assessment should identify what “reasonable measures” are required to minimise exposure to Coronavirus in the workplace. What constitutes “reasonable measures” can be found in the Welsh Government guidance.

As part of its risk assessment, employers should consider issues such as ventilation, hygiene, use of PPE and face coverings. The risk assessments should be prepared in consultation with staff and their representatives. The Welsh Government has also specifically stated that the risk assessment should include considering how employers maximise the number of people who can work from home.

For further advice on any of the changes outlined above or on Covid-19 Coronavirus related employment queries please contact our Employment and HR Services team.

For further advice on any of the changes outlined above please contact our Employment and HR Services team.

New immigration rules post Brexit

7 January 2021

Author: Eleanor Bamber

Following the UK’s vote to leave the European Union back in 2016, free movement between the UK and the EU ended on 31 December 2020.

As of 1 January 2021, a new points-based immigration system applies to all migrants wishing to come to the UK – whether they are EU citizens or not. This system means that all non-UK citizens will now need to meet specific requirements in order to work or study in the UK. Irish citizens’ status continues to be protected as a result of the Common Travel Area and so Irish citizens do not require permission to come to the UK.

Any EU citizens resident in the UK on or before 31 December 2020 are still eligible to apply to the EU Settlement Scheme – the deadline for such applications is 30 June 2021.

Any visitors coming to the UK for up to 6 months may do so without a visa – but will not be able to work. This will assist those whose aim for visiting the UK includes short term study and business-related activities, such as events and conferences. Everyone else will need to apply for a visa under the new points-based immigration system.

What is the points-based system?

In order to qualify for a Skilled Worker Visa, a migrant worker will have to accumulate 70 points.

Points can be accumulated by a migrant worker as follows:

they have a job offer from a Home Office-licensed sponsor at the required skill level = 40 points
the job is paid at the relevant minimum salary threshold (normally £26,500 or the going rate for the particular job, whichever is higher) = 20 points
the migrant worker can speak English at the intermediate level at B1 = 10 points

Where the job will be paid less than £26,500 (but no less than £20,480), a migrant worker can gain extra points in the following ways:

they have a job offer in a shortage occupation
they have a PhD in a subject relevant to the job
they are a new entrant (the salary requirement for new entrants will be 30% lower than the rate for experienced workers in any occupation, to a lower limit of £20,480)

Certain jobs in health or education will still merit 20 points even if the salary is less than £25,600. The applicant must be paid at least £20,480, and in line with set amounts for particular jobs in the UK’s four nations.

There is a fast-track process (with reduced application fees and dedicated support through the application process) for those working in an eligible health occupation. This is done via the Health and Care Visa. Applicants will need to: be a qualified doctor, nurse, health professional or adult social care professional; work in an eligible health or social care job for a UK employer approved by the Home Office; be paid a minimum salary for the role, and have the minimum English knowledge requirements.

Other routes to the UK

Those considered highly skilled can gain the required level of points to enter the UK without a job offer through the Global Talent visa in areas such as science, humanities, arts (including film, fashion design and architecture), engineering and digital technology.

There are also a range of other visa routes available for working in the UK, such as the Start-Upand Innovatorvisas.

It will also still be possible to come to the UK to study under the Student Visa route (and to undertake some limited work). To be eligible for the student route, a migrant will need to demonstrate:

they have been offered a place on a course by a Home Office-licensed student sponsor
they can speak, read, write and understand English
they have enough money to support themselves and pay for the course
they genuinely intend to study in the UK

If a migrant successfully completes a degree at undergraduate level or above in the UK, they will be able to apply for a Graduate visa to stay and work, or look for work, for a maximum period of two years (three years for PhD students) after completing their studies. The Graduate visa will open in summer 2021 to international students who were sponsored by a Home Office-licensed student sponsor which has a track record of compliance with the UK Government’s immigration requirements. It may be possible to move from a Graduate visa into the different visa routes, depending on a suitable job offer and meeting the other requirements of the visa.

The government has taken a firm stance against offering visa options to those considered to be “low skilled”. There is a concern therefore in certain sectors, such as in care and hospitality, that the ability to recruit will be hit hard by the new points-based system.

If they have not done so already, employers would be advised to review their staffing requirements as a matter of urgency, especially if they would normally rely on a large number of EU workers. It is certainly the case that the pandemic may well have impacted this project for the time being (for example in sectors with large numbers of EU workers which have been particularly affected). Employers should however be considering whether to set themselves up as sponsors by making a sponsor licence application so that they can be ready to hire migrant workers once the need arises.

Our team of Immigration experts can assist with all aspects of the sponsor licence process so please do get in touch with a member of the team to discuss your requirements Employment and HR Services.

For further advice on any of the changes outlined above please contact our Employment and HR Services team.

Guidance published on extended Coronavirus Job Retention Scheme (CJRS)

16 November 2020

On the 10th November, the government released its much-anticipated guidance on the extended CJRS, ‘Check if you can claim for your employees’ wages through the CJRS’ and we have summarised the main points on our dedicated CJRS page.

For further advice on any of the changes outlined above or on Covid-19 Coronavirus related employment queries please contact our Employment and HR Services team.

For further advice on any of the changes outlined above please contact our Employment and HR Services team.

Coronavirus Job Retention Scheme (CJRS) extended until the end of March

5 November 2020

Today, the Chancellor has announced that the CJRS is to be extended until 31 March 2021.Click here to read the full article on our dedicated CJRS page.

For further advice on any of the changes outlined above or on Covid-19 Coronavirus related employment queries please contact our Employment and HR Servicesteam.

For further advice on any of the changes outlined above please contact our Employment and HR Services team.

Further changes announced to the Job Support Scheme (JSS)

22 October 2020

Yesterday, the Chancellor announced further changes to the JSS which are aimed at providing increased support for businesses and workers who are being faced with the challenges of the government’s Coronavirus restrictions at both local and national levels.

Under the amended JSS, employers will now only have to find work and pay employees for a minimum of 20% of their usual hours instead of the previous JSS requirement for employees to work at least a third of their usual hours.

Employers are now also only required to pay a contribution of 5% towards an employees’ pay for the hours not worked, instead of the previous one third. The government will instead pick up the tab for 62% of the unworked hours, subject to the cap of £1,541.75 per month. This means that employees will now receive pay for 73% of their usual pay (down from 77% under the original JSS), subject to the cap.

As announced previously, the JSS is available to all small businesses as well as larger businesses who can demonstrate an impact on revenue.

Additionally, English councils will be funded by the government to give monthly grants of up to £2,100 to hotels, restaurants and B&Bs. Devolved nations will be given equivalent funding.

The extended Job Support Scheme for businesses that are required to close as a result of local or national lockdowns remains (see below for further information).

For further advice on any of the changes outlined above or on Covid-19 Coronavirus related employment queries please contact our Employment and HR Services team.

Extension announced to the Job Support Scheme (JSS)

12 October 2020

In keeping with tradition, the Chancellor announced an extension to the JSS on Friday 9 October 2020.

The JSS has been extended to cover businesses who are forced to close due to the ongoing impact of Coronavirus. Such businesses will receive two-thirds of their employees’ wages during the time they are unable to work. Although employers will not be required to make a contribution towards their employees’ wages, they will need to pay national insurance and pension contributions.

We are currently waiting for the Government to publish further details in relation to the extension of the JSS, however, we currently know the following:

The maximum amount that can be claimed is capped at £2,100 per month per employee.
The payments will be made in arrears.
The JSS will be available for six months from 1 November 2020.

For further advice on any of the changes outlined above please contact our Employment and HR Services team.

New Coronavirus Regulations introduced in England

28 September 2020

The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 were made on Sunday and are now in force. These Regulations place additional obligations on both employers and workers, however, they apply in England only.

It is now an offence for an employer to knowingly permit a worker to attend any place other than where the individual is self-isolating (regulation 7). This also includes individuals who are required to self-isolate because a member of their household has tested positive. Employers are therefore responsible for stopping such a worker from working unless they can work from home. An employer who falls foul of this regulation will face a fine starting at £1,000.

Workers must also tell their employer that they are self-isolating (regulation 8) and any individual who breaches self-isolation will commit a separate criminal offence (regulation 11).

Although these regulations apply in England only, it will be interesting to see whether similar regulations are introduced in Wales in the coming weeks.

For further advice on any of the changes outlined above or on Covid-19 Coronavirus related employment queries please contact our Employment and HR Services team.

3 key action points for employers over the next 6 months

25 September 2020

1. Start your sponsor licence applications in advance of Brexit

It is important not to lose sight that Brexit is fast approaching and that from 1 January 2021, free movement will end and the UK will introduce a points-based immigration system which will apply across the board to EU and non-EU citizens. This is a drastic change from the current position where EU citizens are free to live and work in the UK without restriction or the need for a visa.

The new points-based system means that anyone coming to the UK for work must meet a specific set of requirements for which they will score points. Visas will then be awarded to those who gain enough points.

For employers who intend to recruit from overseas (whether from the EU or further afield) after 1 January 2021, it is critical that you take steps now to become a licensed sponsor. Becoming a licensed sponsor enables an employer to sponsor a migrant worker in their application for a visa through the skilled worker route.

We anticipate that the current completion timescale of 8 weeks (estimated) may well increase due to a surge in applications later in the year. We recommend you act sooner rather than later to begin this process for a seamless transition into 2021.

The new system will not apply to EU citizens already living in the UK by 31 December 2020. They and their family members are eligible to apply to the EU Settlement Scheme and have until 30 June 2021 to make an application for either settled status or pre-settled status. For employers who already have EU workers, it is important to remind them that they will need to apply under the EU Settlement Scheme before 30 June 2021.

2. Ensure contracts of employment are compliant with the new Section 1 statement requirement

Although a review of contracts of employment may not feel like a priority at the moment, it is important to remember the changes introduced by the government’s Good Work Plan. This was published in December 2018 and sets out several changes to be made to the scope of section 1 statements – mostly expanding on the minimum information that must be provided to new starters (which now includes workers as well as employees) on “day one” of employment. This “new” form of section 1 statement must reflect the changes for anyone starting work on or after 6 April 2020.

The driving force behind the Good Work Plan is to ensure the statement is “as useful as possible to both the individual and the employer” and to allow the individual “to make informed choices” for the outset of the relationship.

In summary, the section 1 statement must now contain the following additional minimum particulars:

the days of the week the worker is required to work, whether the days and working hours may be variable and how any variation will be determined;
any paid leave to which the worker is entitled;
details of any other benefits provided by the employer that are not already included in the statement;
any probationary period, including any conditions and its duration; and
any training entitlement provided by the employer, including whether any part of that training is mandatory and any other mandatory training which the employer will not pay for.

There are exceptions, meaning certain particulars (including pensions and collective agreements) can be provided after “day one” (as long as this is provided within two months of the start date). There is also the ability for employers to provide particulars relating to incapacity and sick pay, paid leave, pensions and any non-compulsory training entitlement in another “reasonably accessible document” which must be referred to in the principal statement itself.

3. Take steps to prepare for IR35

Despite calls for the IR35 reforms to be delayed, they are still set to come into force on 6 April 2021 (having already been delayed by one year). The new rules are now set out in the Finance Act 2020, which received royal assent on 22 July 2020.

Under the new rules from April 2021, both large and medium-sized businesses in the private sector will be required to determine the contractor’s employment status for tax (and, if appropriate, operate PAYE and employer NICs) if services are provided through personal service companies or other intermediaries. Small companies are excluded from these changes.

Businesses would be well advised to commence preparations now. Crucially, businesses will need to review their existing arrangements with contractors in order to assess whether the engagement is likely to fall inside of IR35.

New Job Support Scheme – Key Aspects

24 September 2020

Rishi Sunak has this afternoon set out the Treasury’s plans to support businesses with the end of the Coronavirus Job Retention Scheme (CJRS) fast approaching (on 31 October 2020) with the announcement of the new “Job Support Scheme”. The rationale behind the scheme is to try and keep employees within viable jobs, not simply jobs that only exist as a result of the CJRS.

Key aspects of the scheme are:

Employees must work a minimum of 33% of their hours.The government, together with employers will cover 2/3 of the pay employees have lost. This means that in total employees will receive 77% of their pay (i.e. the 33% for the hours worked and then 2/3 of the lost pay) .
The support is being targeted at firms that need it most – all small and medium businesses will be eligible. Larger businesses will only be eligible where turnover has fallen as a result of the Covid-19 crisis.
The scheme will be open to employers throughout the UK, even if they have not previously used the CJRS.
The scheme will start in November and will run for 6 months.
All employees employed as of 23 September will be eligible for the scheme

Further details of the scheme will undoubtedly follow which we will digest in due course but, for now, it will no doubt be of relief to employers that there will be some ongoing support to bring people back to work over the coming months once the CJRS comes to an end.

For further advice on any of the changes outlined above or on Covid-19 Coronavirus related employment queries please contact our Employment and HR Services team.

What next for workforce planning?

23 September 2020

On 12 May 2020, there was “good news” from the Treasury when the Chancellor announced that the Coronavirus Job Retention Scheme (CJRS) would be extended to the end of October 2020.

Further updates followed regarding details of the “flexible furlough scheme” in operation from 1 July 2020 and then the start of employers’ contributions to furlough pay from 1 August 2020 (starting with employer NI and pension contributions and rising to 20% of pay from October 2020)

So as the CJRS enters its final month of operation, what are the current implications for business and workforce planning?

Click here to read the full article on our dedicated CJRS page.

Further extension to SSP Regulations

4 September 2020

Once again new Regulations have been introduced to extend SSP entitlement. This time, the Statutory Sick Pay (General) (Coronavirus Amendment) (No. 6) Regulations 2020 extend entitlement to statutory sick pay (SSP) to employees who are advised to self-isolate for 14 days before an operation.

The Regulations extend SSP entitlement to employees who:

Have been notified in writing by a registered medical practitioner (or any person or body who may issue a relevant notification) that they are to undergo a surgical or other hospital procedure.
Have been advised to stay at home for a period of up to 14 days before their admission to hospital for the operation.
Stay at home in accordance with that advice.

The rules only apply to employees who are unable to work due to self-isolation. Therefore any employee who can work from home while self-isolating before an operation should be paid in their normal way.

The Regulations covering England, Wales, Scotland and Northern Ireland came into force on 26 August 2020.

Interestingly there is still no sign of any regulations extending SSP entitlement for those employees required to self-isolate following a return from travel from a country not covered by the travel corridor exemption. This means that these employees are not entitled to SSP unless they become unwell, are notified by that they need to isolate by the Test and Trace service or they themselves become unwell. The government has however issued further guidance for employers to assist them in dealing with employees who are required to self-isolate following their return to the UK.

For further advice on any of the changes outlined above or on Covid-19 Coronavirus related employment queries please contact our Employment and HR Services team.

Statutory Sick Pay (SSP) to be payable where an individual self isolates because someone in their ‘bubble’ has COVID-19 symptoms

The Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment (No. 2) Regulations 2020 (SI 2020/681) (Regulations) came into force on 6 July 2020 and further amended the Statutory Sick Pay (General) Regulations 1982 (SI 1982/894) (SSP Regulations).

The Regulations mean that SSP will be payable where an individual self isolates because someone in their ‘bubble’ is experiencing COVID-19 symptoms. The previous position prior to this amendment was that individuals were only entitled to SSP if an individual who lived in the same household as them had symptoms.

The Regulations also provide greater flexibility in relation to those who are shielding. An original shielding notification can now be overridden by a further notification to end shielding. This means that the entitlement to SSP ends, however, additional notifications can be issued as required which will entitle the individual to receive SSP again.

For further advice on any of the changes outlined above or on Covid-19 Coronavirus related employment queries please contact our Employment and HR Services team.

Chancellor Rishi Sunak unveils his coronavirus economic recovery plan

8 July 2020

Rishi Sunak announced a package of measures during his summer statement at lunch time today. The measures are the second phase in the government’s attempt to combat the economic concerns and pressures following the COVID-19 pandemic. They include the following key employment proposals:

A new “job retention bonus” of £1,000 in respect of each member of staff kept on by the employer for 3 months from the end of the furlough scheme until January 2021 – the employee must be paid at least £520, on average, in each month from November to the end of January;
A temporary cut in VAT on hospitality and tourism from 20% to 5% from 15 July 2020 until 12 January 2021;
A new traineeships scheme whereby the government will pay employers £1,000 for each new work experience place they offer;
The government will also pay employers to create apprenticeships for the next 6 months. Employers will be paid £2,000 per new “young” apprentice and £1,500 per apprentice aged 25 and over.

Note – matters relating to traineeships and apprenticeships are devolved matters and so we await further details about how these measures may be implemented in Wales.

For further advice on any of the changes outlined above or on Covid-19 Coronavirus related employment queries please contact our Employment and HR Services team.

Welsh Government publishes workplace guidance for employers and employees

2 June 2020

On 29 April, the Welsh Government published its guidance titled ‘Keep Wales Safe at Work’. The guidance is aimed at employers and employees and its focus is on keeping work places and workers safe. The guidance sets out key information in relation to ‘keeping safe’ and ‘keeping legal’. The guidance also sets out five key principles for workplaces in Wales which includes care, comply, involve, adapt and communicate.

Update to the Coronavirus Job Retention Scheme (CJRS)

1 June 2020

In keeping with the tradition of making important announcements relating to the CJRS on a Friday evening, Chancellor Rishi Sunak announced reforms to the CJRS during the government’s daily press conference on 29 May. The updated CJRS can be found here and we have summarised the key points here.

Immigration update – new rules for those entering the UK from 8 June 2020

From 8 June, there will be new rules in place for entering the UK because of COVID-19. The new rules include the following:

Those travelling to the UK will need to provide their journey and contact details via an online form before travelling. The online form will be made available on the government website.
Those who travel to the UK will need to self-isolate for their first 14 days in the UK. If the individuals do not have any COVID-19 symptoms after 14 days, they can stop self-isolating. However, they must then follow the same rules as people who live in the UK.

People who travel to the UK from Ireland, the Channel Islands or the Isle of Man are exempt from the requirements to complete the online form and self-isolate for the first 14 days in the UK.

There are also several exemptions from the requirement to self-isolate for 14 days. The exemptions include the following: medical professionals who are travelling to help with the fight against COVID-19, seasonal agricultural workers who will self-isolate on the property where they are working and road haulage and freight workers to ensure that the supply of goods is not impacted. The full list of exemptions can be found here.

Statutory Sick Pay (SSP) for Test and Trace

20 May 2020

The Statutory Sick Pay (General) (Coronavirus Amendment) (No. 4) Regulations 2020 came into force today to extend entitlement to SSP to people who have been told to self-isolate under the new Test and Trace system. People who have been notified that they have been in contact with a person who has COVID-19 and consequently have to isolate for 14 days will now be entitled to SSP.

The new Test and Trace system starts in England today and is expected to start in Wales next week.

The Coronavirus Job Retention Scheme (CJRS) – New Treasury Direction

28 May 2020

On Friday 22 May, the government published a new Treasury Direction which amends the previous Direction issued on 15 April. Click here to read our summary of the key points.

Reforms to IR35 legislation still set to come into force in April 2021

22 May 2020

Despite widespread calls for the IR35 reforms to be delayed by at least two years in light of the ongoing economic impact of the coronavirus pandemic, businesses will be disappointed to hear that the reforms are still set to come into force in April 2021. Click here to read more.

New online service launched to reclaim SSP

19 May 2020

Small and medium-sized employers can reclaim coronavirus-related statutory sick pay (SSP) paid to employees. The government announced that the new online service will open from 26 May to employers which:

had less than 250 employees before 28 February 2020;
had a PAYE payroll scheme which was created and started on or before 28 February 2020; and
paid current or former employees SSP for eligible periods of sickness starting on or after 13 March 2020.

HMRC will make a repayment of up to two weeks’ SSP if an employee is unable to work because they:

have coronavirus;
are self-isolating and unable to work from home; or
are shielding because they have been advised that they are at high risk of severe illness from coronavirus.

Employers can furlough shielded workers who are unable to work from home. Once furloughed, the employee should no longer receive SSP and is treated as a furloughed employee. If shielded workers have not been furloughed, employers can only claim up to two weeks SSP from 16 April 2020.

For employers who pay enhanced or contractual sick pay, the rebate will only cover the amount which represents SSP, (which was £94.25 from 6 April 2020).

For further advice on any of the changes outlined above or on Covid-19 Coronavirus related employment queries please contact our Employment and HR Services team.

Guidance on holiday entitlement and pay during coronavirus (COVID-19)

18 May 2020

Last week the government published guidance on holiday entitlement and pay during the COVID-19 pandemic, particularly in relation to furloughed staff.

The guidance outlines how holiday entitlement and pay operates and it is designed to help employers understand their legal obligations in terms of workers who continue to work and workers who have been placed on furlough leave.

Further update to Coronavirus Job Retention Scheme (CJRS)

18 May 2020

The government published a further update to its guidance on the CJRS. The updated guidance can be accessed by clicking here but we have summarised the main changes in our blog, here.

The government introduces Regulations to protect entitlements to family leave statutory payments

28 April 2020

The Maternity Allowance, Statutory Maternity Pay, Statutory Paternity Pay, Statutory Adoption Pay, Statutory Shared Parental Pay and Statutory Parental Bereavement Pay (Normal Weekly Earnings etc.) (Coronavirus) (Amendment) Regulations 2020 (the Regulations) were made on 23 April 2020 and came into force on 25 April 2020.

The Regulations change the way of calculating a person’s normal weekly earnings in determining entitlement to, and rate of payment of, statutory maternity pay, statutory paternity pay, statutory adoption pay, statutory shared parental pay and statutory bereavement pay to ensure that an employee’s entitlement to these statutory payments are not affected by any period spent on furlough leave.

The amendments provide that the normal weekly earnings are to be calculated using the amount that would have been derived under the employees’ employment contract if they had not been placed on furlough leave. The Regulations apply where the first day of leave in respect of which payment is to be made is on or after 25 April.

UPDATED: The government publishes guidance for employers on the Coronavirus Job Retention Scheme (Furlough Scheme)

20 April 2020

On Friday 17 April, the government provided some much-anticipated clarity on the issue of taking annual leave whilst on furlough leave. Further guidance around the scheme was also published. Read our summary here.

Government publishes the fourth version of the Coronavirus Job Retention Scheme (CJRS) and issues a Direction to HMRC

16 April 2020

On 15 April 2020, the government issued its fourth version of the guidance relating to the CJRS along with a Direction to HMRC made under the Coronavirus Act 2020. We have summarised the key aspects of the amended guidance and Direction here.

Further update to SSP entitlement

16 April 2020

The Statutory Sick Pay (General) (Coronavirus Amendment) (No. 3) Regulations 2020 were published yesterday and are due to come into force today. These now (once again) confirm that the “extremely vulnerable” are entitled to SSP. This includes people who have received letters advising them to stay at home and follow rigorous shielding measures.

This is different to the position set out in The Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020, which we wrote about last week (see our update on 9 April on the rolling feed). These Regulations limited SSP to those with symptoms of Coronavirus or those living with symptoms, but the No 3 Regulations now once again confirm that shielding employees are entitled to SSP.

Government announces third version of the Coronavirus Job Retention Scheme guidance for employers

15 April 2020

On the evening of 9 April 2020, in keeping with its habit of releasing further information just before the weekend, the government announced its third version of the Coronavirus Job Retention Scheme (CJRS)guidance for employers just before the long Easter weekend. The new guidance helpfully provides further clarity in relation to three main areas; sick pay, TUPE and work visas and how they work with furlough. We’ve summarised it all here.

Employment law changes April 2020

Monday 14 April 2020

Amongst all of the government guidance and new regulations relating to employment law implications of the COVID-19 Coronavirus, little has been said about a number of key employment law changes that have effect from April 2020. These important changes affect written statements of terms and conditions, introduce parental bereavement leave and change the reference period for calculating holiday pay for workers with irregular hours. There are also the usual increases to national minimum wage, maternity pay, statutory sick pay and redundancy payments.

There have also been some additional changes introduced because of the COVID-19 pandemic. These include the implementation of IR35 being postponed and the enforcement of gender pay gap reporting being suspended.

We have outlined the key aspects of each change below.

Changes to the written statements of terms and conditions

Section 1 of the ERA 1996 sets out the required information that an employer must give to an employee. Section 1 statements are most commonly given in the form of a contract of employment. From 6 April 2020 there are various changes being made to the rules on section 1 statements which are a result of the Taylor Review in 2017 and the Good Work Plan which was published in 2018.

Firstly, the new rules require employers to provide a section 1 statement to all workers as well as employees (regardless of their length of service). The section 1 statement has also now become a day 1 right which means that employees and workers must be provided with it on or before the date on which their employment starts. It is also possible for existing employees to request a section 1 statement, which will need to include the required information under the new rules. Such a request must be complied with within 1 month.

The following information is currently required to be given in the principal statement of particulars (Section 1 ERA1996):

The names of the employer and employee;
The date employment starts and the date the employee’s period of continuous employment began;
Pay and interval of payment;
Hours of work;
Holiday entitlement and holiday pay;
Job title or brief description of the work;
Place of work;
The person to whom the employee can appeal if they are dissatisfied with disciplinary decisions/decision to dismiss them; and
The person to whom the employee can apply for the purpose of seeking redress of any grievance relating to the employment and the manner in which an application should be made.

From 6 April 2020, the additional particulars below must also be provided to all workers in the principal statement:

The days of the week the worker is required to work and whether working hours or days may be variable with details of how they may vary.
Any entitlement to paid leave including maternity and paternity leave.
Any other remuneration or benefits provided by the employer.
Any probationary period.
Any training entitlement provided by the employer, including whether any training is mandatory and/or must be paid for by the worker.

Employers can choose whether to put the following information in the principal statement, supplementary statements (to be provided within 2 months of the start date of employment) or in reasonably accessible documents that are referred to in the section 1 statement:

Terms relating to absence due to incapacity and sick pay.
Notice periods for termination by either side.
Information about disciplinary and grievance procedures.
Terms as to pensions and pension schemes.

From 6 April 2020, the following particulars that may currently be provided in a supplementary statement must also be given in the principal statement:

Terms relating to absence due to incapacity and sick pay.
The notice periods for termination by either side.
Terms as to length of temporary or fixed-term work.
Terms related to work outside the UK for a period of more than one month.

A new right to parental bereavement leave and pay

The Parental Bereavement Leave Regulations 2020 & The Statutory Parental Bereavement Pay (General) Regulations 2020 came into force on 6 April 2020. The provisions include the following:

statutory right to a minimum of 2 weeks off work in the event of their child’s death or stillbirth if a parent loses a child under the age of 18, or suffer a stillbirth from the 24th week of pregnancy;
statutory payment of £151.20 per week for 2020/21 or 90% of average earnings calculated over a set reference period, whichever is the lower;
a bereaved parent is broadly defined to include being a parent or foster parent, having a child placed with you for adoption, being an intended parents under a surrogacy arrangement, being the natural parent of a child who has been adopted by someone else and there is a court order allowing you or your partner to have contact with the child and looking after the child in your own home for at least 4 weeks other than as a paid carer;
can be taken as a single block or as two separate weeks within a period of 56 weeks;
give employees protection from detriment whilst on leave or afterwards – an employer cannot treat them less favourably as a consequence of their decision to take this leave.

Calculating holiday pay for workers with irregular hours

From 6 April 2020 the Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 (SI 2018/1378) amend regulation 16 of the Working Time Regulations 1998 to increase the reference period for determining an average week’s pay (for holiday pay purposes) for workers without fixed hours or pay from 12 weeks to 52 weeks, or if the worker has been employed for less than 52 weeks, the number of complete weeks for which the worker has been employed.

National Insurance Contributions on Termination Payments over £30,000Termination payments above £30,000 are now subject to employers’ national insurance contributions (class 1A NICs) . As with income tax, employer’s national insurance contributions are only payable on the amount of the termination payment over £30,000.

Extension of IR35 postponed

Chief treasury secretary Steve Barclay announced on 17 March 2020 that the introduction of IR35 in the private sector will be delayed until 6 April 2021 due to the economic pressures of COVID-19.

If you would like more information, please click here to access our previous blog post on this.

Gender pay gap reporting suspended

The enforcement of the gender pay gap reporting regulations have been suspended this reporting year amid the coronavirus pandemic. This means that there will be no expectation on employers to report their data.

Liz Truss (minister for women and equalities) and David Isaac (chair at EHRC) released the following joint statement: “we recognise that employers across the country are facing unprecedented uncertainty and pressure at this time. Because of this we feel it is only right to suspend enforcement of gender pay gap reporting this year”.

This move will undoubtedly be welcomed by many businesses as it allows them to prioritise responding to the current crisis. However, businesses are reminded that once the coronavirus pandemic is over, their attention must return to this important agenda.

Current rates and limits

National Minimum Wage and National Living Wage from 1 April 2020

25 and over – £8.72
21 to 24 – £8.20
18 to 20 – £6.45
Under 18 – £4.55
Apprentice – £4.15

Family payments from 5 April 2020

Rate of statutory maternity pay – £151.20 (or 90% of employees average weekly earnings if lower)
Rate of statutory paternity pay – £151.20 (or 90% of employees average weekly earnings if lower)
Rate of statutory adoption pay – £151.20 ((or 90% of employees average weekly earnings if lower)
Rate of statutory Shared Parental Pay – £151.20 ((or 90% of employees average weekly earnings if lower)

Statutory Sick Pay from 6 April 2020

£95.85

Compensation limits from 6 April 2020

Limit on a week’s pay for calculating redundancy and unfair dismissal – £538
Maximum basic award for unfair dismissal and statutory redundancy payment – £16,140
Maximum compensatory award for unfair dismissal – £88,519 (or 1 years’ gross salary if lower)

Vento Bands

New Vento Bands have been released which will apply in respect of claims presented on or after 6 April 2019. The new bands take into account changes in the RPI All Items Index released on 20 March 2019.

The updated Vento bands are as follows:

a lower band of £900 to £8,800 (less serious cases);
a middle band of £8,800 to £26,300 (cases that do not merit an award in the upper band); and
an upper band of £26,300 to £44,000 (the most serious cases), with the most exceptional cases capable of exceeding £44,000.

For further advice on any of the changes outlined above or on Covid-19 Coronavirus related employment queries please contact our dedicated Employment and HR Servicesteam.

New Regulations amend employees’ entitlement to Statutory Sick Pay (SSP)

Thursday 9 April 2020

The Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020 (SI 2020/374) have been published. Although the government has stated for some time now that SSP should be paid from the first day of incapacity when the employee is incapable, or deemed to be incapable, of doing work by reason of COVID-19, these Regulations now make that law. This applies to absences from 13 March 2020.

The above Regulations have also quietly amended the rules on who is entitled to SSP when self-isolating by removing the reference to the public health guidance and instead referring to “the schedule” which has been added to the new SSP Regulations. Click here to read more.

New law introduced in Wales to enforce the two-metre social distancing rule at work

Tuesday 7 April 2020

On 3 April, First Minister of Wales, Mark Drakeford, announced Wales would be the first nation in the UK to bring in a new law requiring employers to take ‘all reasonable measures’ to comply with the two-metre social distancing rule. These regulations were published and came into force on 7 April 2020. Click here to read more.

Homeworking – data protection issues

Friday 3 March 2020

Coronavirus has meant an unprecedented number of businesses and organisations have been forced to confront and resolve the issue of facilitating remote/home working for their employees. Prior to the pandemic, the figures for employees classing themselves as “working from home” (including a base in and around the home) stoodataround13-14% of the total UK workforce. Unsurprisingly there is no data from the recent few weeks to confirm quite how this figure has changed but it is clear to see that there has been a fundamental change in the way that many former office-based employees are now being required to work from home full time as a temporary measure.

Updated Vento Bands

Monday 30 March 2020

The Presidents of the Employment Tribunals (England & Wales and Scotland) have issued Presidential Guidance which updates the Vento bands for damages for injury to feelings for claims issued on or after 6 April 2020.

The new Vento bands are:

Lower band: £900 to £9,000
Middle band: ££9,000 to £27,000
Upper band: £27,000 to £45,000 (with the possibility of the most serious cases exceeding £45,000)

For further advice on this update please contact our dedicated Employment and HR Services team.

New Government COVID-19 measures allow annual leave to be carried over

Friday 30 March 2020

The Working Time (Coronavirus) (Amendment) Regulations 2020 amend regulation 13 of the Working Time Regulations 1998 (WTR) to allow workers to carry over 4 weeks into the next two leave years where leave has not been taken because of the COVID-19 pandemic. The new rule applies only to the four weeks of annual leave provided for by Regulation 13 WTR but not the additional 1.6 weeks of annual leave provided for by Regulation 13A. However, this can be carried over by agreement.

This amendment has been introduced to allow businesses who are under pressure from the current pandemic to have flexibility at a time when it is needed most. It has been recognised that if businesses were to allow annual leave during the current crisis it could leave them short-staffed in some key industries such as food and healthcare. This measure will also ensure that workers do not lose their entitlement to paid holiday while working as part of the national effort against coronavirus.

The Employment team at Hugh James has been working closely with businesses during this time to help them navigate through the employment implications caused by the pandemic and will continue to monitor developments coming out from Government.

For further advice on Coronavirus COVID-19 related employment queries please contact our dedicated Employment and HR Services team.

Wage rescue package announced

Monday 23 March 2020

Chancellor Rishi Sunak has announced an employment and wage subsidy package in an effort to try and help businesses protect the jobs of millions of workers. Many businesses have been facing the prospect of closure or the loss of many jobs in the wake of the Coronavirus pandemic.

The financial package includes the Coronavirus Job Retention Scheme where by the government will pay up to 80% of the wages (up to £2500 per month) of employees not working but who are “furloughed” and kept on the payroll. This applies to all employers across all sectors. The scheme will backdate back to 1March and is open initially for 3 months, however, the government has stated that it will extend this scheme if necessary. The government has made it clear that they are putting no limit on the funding available.

At present, the concept of “furlough” does not exist in UK employment law. It is something that has been introduced specifically to deal with this situation. The government has confirmed that designating employees as furloughed workers will involve changing their employment status. This remains subject to existing employment law and, depending on the employment contract, may be subject to negotiation.

For further advice on Coronavirus COVID-19 related employment queries please contact our dedicated Employment and HR Services team.

Online isolation notes launched – providing proof of Coronavirus Covid-19 absence from work

Friday 20 March 2020

The Government has announced that employees who are unable to attend work for more than seven days due to Coronavirus Covid-19 will be able to obtain an online isolation note. This will provide evidence that they have been advised to self-isolate either because they are experiencing symptoms of Coronavirus or someone they live with is experiencing such symptoms.

The isolation notes can be accessed online through the NHS website and NHS 111 online with a view to easing the pressure currently placed on GP surgeries. This measure will also prevent people who are in self-isolation needing to leave their homes.

This will be welcome news to employers who will now be able to request and receive documentary evidence from employees to support the reason for their absence.

For further advice on Coronavirus Covid-19 related employment queries please contact our dedicated Employment and HR Services team.

Extension of IR35 postponed

Thursday 19 March 2020

News that the introduction of IR35 in the private sector will be delayed by a year will give some businesses welcome relief, if they have not yet completed their preparations.

They should use this additional time to make sure they’re well prepared for the change next year, whilst also having the opportunity to focus on the new challenges emerging from the Covid-19 outbreak.

Chief treasury secretary Steve Barclay announced on 17 March 2020 that the introduction of IR35 in the private sector will be delayed until 6 April 2021 due to the economic pressures of COVID-19.

Steve Barclay said: “This is a deferral and not a cancellation, and the Government remained committed to reintroducing this policy to ensure people working like employees but through their own limited company pay broadly the same amount of tax as those employed directly.”

Businesses in the private sector that have already made changes to their contracts in preparation for the introduction of IR35 are well placed for the legislation now coming into force in April 2021.

If you need help and guidance on the introduction of IR35 in the private sector or the pressures you are currently facing as a result of the Covid-19 outbreak please contact our employment team.

Coronavirus and entitlement to sick pay – government updates

Friday 13 March 2020

“Regulations have been brought into force today (13 March 2020) which will allow those who are self-isolating to “prevent infection or contamination with coronavirus disease” in accordance with current public health guidance to claim statutory sick pay.

The new regulations are the Statutory Sick Pay (General)(Coronavirus Amendment) Regulations 2020 and amend the definition of what is meant by “persons deemed incapable of work” to extend it to those self-isolating in this way.

It is important to note that the regulations do not alter the current situation with regard to when statutory sick pay will be paid – this is currently only payable after three days of incapacity. The Government has indicated that emergency legislation will be introduced imminently so that sick pay will be available from the first day of sickness absence but this has not yet been published.

Coronavirus and entitlement to sick pay – government updates

Wednesday 4 March 2020

Health Secretary, Matt Hancock, has said that those in self-isolation on medical advice should be treated as on sick leave and be paid statutory sick pay.

He told MPs yesterday: “Self-isolation on medical advice is considered sickness for employment purposes. That is a very important message for employers and those who can go home and self-isolate as if they were sick because it is for medical reasons.”

Today, Boris Johnson has announced emergency laws will be introduced so that those struck down with the virus will be entitled to be paid statutory sick pay from the first day they are signed off rather than having to wait until the fourth day of sickness as per the current statutory sick pay regime.

ACAS publishes guidance on Coronavirus

Monday 2 March 2020

ACAS has published helpful guidance for employers dealing with increased questions about Coronavirus and its impact in the workplace. A link to the guidance can be found here https://www.acas.org.uk/coronavirus.

Key points from the guidance include:

The workplace’s usual sick leave and pay entitlements apply if someone has coronavirus.
An employer may need to make some allowances to its sickness policy, for example, the evidence of a sick note which could be difficult if an employee has been told to self-isolate for 14 days.
There’s no statutory right to pay if someone is not sick but cannot work because they
- have been told by a medical expert to self-isolate
- have had to go into quarantine
- are abroad in an affected area and are not allowed to travel back to the UK

But its good practice for their employer to treat it as sick leave and follow their usual sick pay policy or agree for the time to be taken as holiday.Otherwise, there’s a risk the employee will come to work because they want to get paid. They could then spread the virus if they have it.

If an employee is not sick but the employer tells them not to come to work, they should get their usual pay. For example, if someone has returned from China or another affected area and their employer asks them not to come in.
There’s no statutory right to pay for time off to look after dependents but some employers might offer pay depending on the contract or workplace policy.
When employees feel they do not want to go to work because they’re afraid of catching coronavirus, an employer should listen to any concerns staff may have. If there are genuine concerns, the employer must try to resolve them to protect the health and safety of their staff. For example, if possible, the employer could offer flexible working. If an employee still does not want to go in, they may be able to arrange with their employer to take the time off as holiday or unpaid leave. The employer does not have to agree to this. If an employee continues to refuse to attend work, it could result in disciplinary action.
The guidance also contains some practical tips for effectively managing the risk of the virus spreading in the workplace.

Unfair dismissal: Criminal charges

Monday 2 March 2020

The EAT in the case of Lafferty v Nuffield Health has found that an employer had fairly dismissed an employee based on concern for its reputation when that employee was charged with, but not convicted of, a criminal offence.The Claimant was a hospital porter who had a long, unblemished service record at the Respondent charity. His duties included transporting patients under anaesthetic.

The Claimant faced an allegation of a serious sexual offence (unrelated to work) which he was eventually charged with. Upon learning of the charge, the Respondent dismissed the Claimant citing the fact that there was a risk to its reputation if it continued to employ the Claimant given his access to vulnerable patients if he was eventually convicted.

The EAT noted that this was a “difficult case” and that a case of unproven criminal allegations will turn on its own facts. The court found that there was a risk of reputational damage for the Respondent and that ultimately the dismissal for “some other substantial reason” was fair in all the circumstances.
It is important in cases such as these that an employer does not immediately leap to dismissal when it learns that an employee has been accused of criminal conduct. There will always be an expectation that the employer should make some inquiry into the circumstances rather than taking the information at face value. Furthermore, an employer will still need to be able to demonstrate that the decision to dismiss in any given situation was fair and reasonable in all the circumstances. This may be more easily demonstrated when reputational damage is a real prospect in view of the allegations that the employee faces.

Immigration updates

Monday 2 March 2020

On 19 February 2020, the government announced new border controls which will affect lower-skilled EU migrants once the post-Brexit transitional arrangements come to an end. The new system is set to come into force from 1 January 2021 and, under the new rules, EU nationals will have to meet some strict criteria under a points-based system. The new system will award points for specific skills, qualifications, salaries or professions, and visas will only be awarded to those who gain enough points (70 points minimum).

The three essential requirements that all workers will have to have are:

a job offer from an approved sponsor
a job that is at an appropriate skill level
English skills at a level to be set by the Home Office

These minimum requirements will account for 50 of the 70 points that a worker needs to achieve in order to be able to come and work in the UK.

In order to reach the required 70 point threshold, the applicant will need to meet other criteria such as working in a role which attracts a high enough salary, working in a sector where there is a labour shortage or possibly having a PhD. Ten points will be awarded for an annual salary of £23,040, rising to 20 points over £25,600.

Statutory changes for April 2020

Monday 2 March 2020

(A) The Department for Work and Pensions has set out the proposed increases to a number of statutory benefit payments. The following rates are expected to apply from April 2020:

The weekly rate of statutory sick pay (SSP) will be £95.85 (up from £94.25).
The weekly rate of statutory maternity pay (SMP) and maternity allowance will be £151.20 (up from £148.68).
The weekly rate of statutory paternity pay (SPP) will be £151.20 (up from £148.68).
The weekly rate of statutory shared parental pay (ShPP) will be £151.20 (up from £148.68).
The weekly rate of statutory adoption pay (SAP) will be £151.20 (up from £148.68).

(B) All termination payments above the £30,000 threshold will be subject to class 1A NICs

(D) The Parental Bereavement (Leave and Pay) Act 2018 will be brought into force by the draft Parental Bereavement Leave Regulations 2020.

(E) Employers will need to make sure that its employees and workers have the correct information contained in their section 1 statement of terms – for further advice on this please do not hesitate to contact a member of the employment team.

Christmas party conundrums. We have collated some of the more “controversial” questions brought to our attention in the lead up to the Christmas party season together with our responses!

Monday 16 December 2019

Can an employer stop breastfeeding employees bringing their babies to the Christmas party?

The context around this question involves an office Christmas party based in a hotel with a four-course meal accompanied by plenty of wine and raucous behaviour. The motivation for wanting to stop employees bringing their babies to the party included the fact that the party would be “spoilt” by crying babies(!) but also centred around concerns for the health and safety of the babies/mothers.

The provisions in the Equality Act 2010 dealing with direct discrimination which prohibit less favourable treatment of a woman because she is breastfeeding are expressly excluded from discrimination at work. If however, an employer refuses to allow a woman the flexibility she may need to breastfeed or express milk, this may be indirectly discriminatory unless the employer can objectively justify its policy.

There is no specific legislation which requires the provision of facilities for breastfeeding itself at work. However, HSE guidance, recommends that other facilities (such as a private, clean environment, other than the toilets, for expressing milk and a fridge for storing it) should be provided.

Furthermore, there are also obligations that an employer has to assess the risks for its breastfeeding employees from a health and safety perspective. The EHRC Code highlights the need for employers to remember their duty of care to remove any hazards for breastfeeding employees.

One key question here then is whether the work Christmas party held at an external venue could be considered to be an extension of the workplace, thereby exposing the employer to the obligations set out above. An employer would be advised to consider that it is likely to be considered an extension to the workplace and therefore issues such as the health and safety of the employees will need to be considered given the nature of the event. There is clearly no right for employees to bring their babies to the workplace (of which the party could be seen as an extension) but these factors do need to be balanced against the risk of inadvertently falling foul of the indirect sex discrimination provisions if female breastfeeding employees are barred from attending and/or do not have access to appropriate breastfeeding facilities.

One option for the employer, in this case, would be to provide a quiet room for employees to be able to express safely and hygienically. This does not however necessarily extend to permitting the babies to attend the party given the concerns around health and safety (which may be assisted if the hotel has a policy against allowing small children to attend these types of event).

Christmas party: should you allow a suspended employee to attend?

Suspension normally comes hand in hand with an employee being told that during their suspension period they are not to report to work and must not contact colleagues or clients. In principle, therefore barring a suspended employee from a work-related function is not treating them any differently than they would be treated in relation to their normal work during suspension. Indeed, permitting an employee to attend a work-related function while on suspension is likely to be inconsistent with the employer’s decision to suspend in the first place.

Depending on the reasons for suspension, an employer always needs to bear in mind that an employee could seek to argue that the suspension was a breach of the implied term of trust and confidence and that it was not necessary in the first place. In order to mitigate against this risk, an employer should always be satisfied that it has reasonable grounds for the suspension and also to make sure that it reviews whether suspension continues to be appropriate as time goes on

When is an employer liable for acts “committed” at a work Christmas party?

Decisions about vicarious liability are very fact-specific Two recent cases illustrate this point:

Shelbourne v Cancer Research UK (CRUK)

CRUK held a Christmas party at its research institute in Cambridge, at which alcohol was served. Mrs Shelbourne was dancing when another partygoer, Mr Bielik (who had been drinking), attempted to pick her up but lost his balance and dropped her. She sustained a serious back injury. Mr Bielik was a visiting scientist at the institute but was not employed by CRUK. Mrs Shelbourne sued CRUK for negligence. The County Court rejected her claims and she appealed, both in relation to whether CRUK had been negligent and whether it was vicariously liable for Mr Bielik’s actions.

The High Court dismissed the appeal and found CRUK was not vicariously liable.

There was no dispute that the nature of Mr Bielik and CRUK’s relationship was capable of giving rise to vicarious liability. The appeal, therefore, focused on what the “field” of Mr Bielik’s activities was and whether there was a “sufficient connection” between the position in which Bielik was employed and his wrongful conduct to make it right for CRUK to be held liable under the principle of social justice.

The court agreed with the County Court that the field of Mr Bielik’s activities was simply his research work at CRUK. It had been correct to take the view that this field was not sufficiently connected with what happened at the party as to give rise to vicarious liability.

Bellman v Northampton Recruitment Limited [2018] EWCA Civ 2214

The CRUK case can be contrasted with the recent decision of Bellman where a Managing Director’s drink assault on an employee was “in the course of employment” rendering the company vicariously liable. In this case, the wrongdoer was the managing director, so whose authority and remit were very wide. The incident took place in an unscheduled drinking session following a work Christmas party, but the MD had chosen to wear his “metaphorical managing director’s hat” and to deliver a lecture to his subordinates. This created the necessary sufficient connection to establish vicarious liability.

Conservative majority: Can we start to narrow down what might be in store for employment law?

13 December 2019

Now that the General Election for 2019 has concluded and we know that this has resulted in a massive Conservative majority, we can start to narrow down with better predictability what may be in store for Employment law and rights over the coming months/years. Until the result of the election was known, practitioners were faced with polar opposite plans from the two main parties with regard to the extent of Employment law reform and so it was pretty impossible to be able to predict the direction of travel.

Although items and policies listed in political manifestos may not be taken forward, it is worth looking at the commitments made in the Conservative manifesto regarding the party’s intentions towards rights in the workplace. These include building on recommendations from the Taylor Review as well as the following measures:

creating a single enforcement body to crack down on any employer abusing employment law – the examples given are where employers “take” workers’ tips or refuse sick pay;
ensuring that workers have the right to request a more predictable contract;
encouraging flexible working and consulting on making it the default position unless employers have good reasons not to;
legislating to allow parents to take extended leave for neonatal care;
looking at ways for fathers to take paternity leave; and
extending the entitlement to leave for unpaid carers to a week.

And finally, given Boris Johnson’s clear commitment to taking the UK out of the EU by 31 January 2020, we will also need to see how Brexit shapes the future of employment law in the coming year. Leaving the EU could well have an impact on some key areas of legislation – TUPE and the Agency Workers Regulations are often cited as two of the most likely areas that Government could choose to reform.

World Menopause Day – Acas guidance published

18 October 2019

To tie in with World Menopause Day today, Acas has published new guidance which will hopefully assist employers support staff who are affected by menopause symptoms at work. The menopause has been receiving significant media attention in recent months as there is increasing (and welcome) awareness of the difficulties which large swathes of the UK workforce who are going through menopause transition
can face.

The menopause was also in the spotlight at Hugh James’ recent Employment Breakfast Seminar held on 10 October 2019 where Louise Price delivered a very informative session on the legal and practical aspects of managing a workforce who may be facing difficulties when going through menopause transition. It is crucial that employers understand and have an awareness of the employment laws that can relate to menopause issues at work including the risks of discrimination on the grounds of sex, disability or age.

A link to the Acas guidance is provided here and should provide useful pointers for employers who are seeking to implement an effective menopause policy as well as considering what practical changes can be made to assist employees who are affected by menopause symptoms and who may, therefore, need some flexibility and accommodation in the workplace.

Gray v Mulberry – Claim for indirect discrimination based on belief in right to copyright fails

18 October 2019

The Court of Appeal has now handed down its decision in the case of Gray v Mulberry. In this case, the employee was dismissed for refusing to sign an agreement that would assign copyright to her employer over works created during her employment. The employee brought claims including for indirect discrimination on the ground of philosophical belief under the Equality Act 2010. She relied on her passionate belief in the “sanctity of copyright law” and maintained that this was a philosophical belief capable of protection under the Equality Act 2010.

The Employment Tribunal and the EAT had previously disagreed with Mrs Gray and held this belief lacked the cogency to qualify under the Equality Act 2010 as a philosophical belief system (see our previous reporting on this case).

The Court of Appeal has also now dismissed the case on the basis that the employee’s asserted belief did not put her at a disadvantage. The reason the employee had refused to sign the agreement was because of concerns around the obligations being too one-sided and not sufficiently protecting her own interests. Therefore, the court considered that there was no casual link between the employee’s belief and her dismissal. As a result, there was no need for the court to consider whether the belief was capable of being protected as a “philosophical belief” pursuant to the Equality Act 2010.

Was vegetarianism a belief qualifying for protection under the Equality Act 2010?

25 September 2019 |Conisbee v Crossley Farms Ltd and others ET/3335357/2018

No held the Employment Tribunal in Conisbee.

Mr Conisbee, a vegetarian, had only been employed for 5 months before he resigned. He alleged that he had been discriminated against on the ground of religion or belief contrary to the Equality Act 2010, is belief being vegetarianism.

The ET held that this belief did not qualify for protection under the Equality Act 2010. It found that although the claimant’s vegetarian belief was genuinely held and was worthy of respect in a democratic society, it failed to meet the other legal hurdles for protection, including the fact that it did not attain a sufficient certain level of cogency and cohesion because the reason for being a vegetarian differs greatly. The ET considered that vegetarians adopt the practice for many different reasons: lifestyle, health, diet, concern about the way animals are reared for food and personal taste.

Perhaps controversially, the ET contrasted vegetarianism with veganism, stating, obiter, that the reasons for being a vegan appear to be largely the same and that there was, therefore, a clear cogency and cohesion in the vegan belief which might be capable of protection.

It is worth bearing in mind that this decision is a first instance decision and so is not binding on other tribunals but provides at least an indication of how they may be minded to treat religion or belief claims based on vegetarianism.

Did an employer have actual knowledge of an employee’s disability through information provided to the employer’s occupational health adviser?

25 September 2019 | Q V L [UKEAT/0209/18/BA]

Not in the case of Q v L [UKEAT/0209/18/BA] where judgment from the EAT has now been handed down.

In this case, the employee had only consented to the occupational health advisor forwarding an opinion to the employer about his fitness to work. It made no difference that the employee had perhaps expected more information to be passed to his employer from the occupational health advisor. On the facts, he had not consented to information being passed about his disabilities and therefore the employer could not be said to have known about them at outset of the employment.

It is worth bearing in mind that although the employer did not have “actual” knowledge of the disabilities, the EAT found that it had failed to make adequate enquiries about the employee’s medical condition once it was in possession of some further details indicating that this was the case. Therefore, from a fairly early stage of employment, the EAT found that the employer “should” have known that the employee suffered from a disability.

Employers will not therefore be able to absolve themselves from responsibility, for example in relation to considering what reasonable adjustments may be required, just because they are not in receipt of information about an employee’s disability from an occupational health advisor.

Should holiday entitlement for ‘part-year’ workers be prorated to that of full-year workers to reflect the fact that they do not work throughout the year?

25 September 2019| The Harpur Trust v Brazel [2019] EWCA Civ 1402

No, held the Court of Appeal in The Harpur Trust v Brazel.

This case concerned a visiting music teacher (Brazel) who was employed by The Harpur Trust (Harpur) on a permanent (zero hours) contract. She worked mainly during school term-time but there was no guarantee of hours and she was only paid for the work she carried out.

Brazel was a part-time worker in two senses, firstly, that she did not work a full working week and, secondly, that for large parts of the year (during school holidays) she did not work for the school at all. It is only this second type of part-time working with which this case is concerned. She was entitled to 5.6 weeks’ paid annual leave (both under her contract and statute), which she was required to take during school holidays.

In assessing her holiday pay entitlement, Harpur made three equal payments in respect of holiday at the end of each term. Following the Acas guidance and a method with which HR practitioners will be familiar, Harpur calculated Brazel’s earnings at the end of each term and paid her one-third of 12.07% of that figure.

The tribunal at first instance found that there had been no unlawful deduction of wages as a result of the application of the 12.07% calculation. It held that a principle of pro-rating should apply and that the statutory scheme should be read down for part-time workers who worked fewer than 46.4 weeks per year so that payment was capped at 12.07% of annualised hours. The tribunal found that words could be read into regulation 16 of the WTR 1998 to that effect.

Brazel appealed to the EAT in relation to the correct calculation of holiday pay only. The EAT upheld the appeal, finding that the tribunal had erred in capping her holiday pay at 12.07% of annual earnings. The EAT held that there was no requirement in the WTR to pro-rate holiday pay for part-time employees to ensure that full-time employees were not treated less favourably. The tribunal had overlooked the principle that part-time workers were not to be treated less favourably than full-time workers and that there was, as yet, no principle to the opposite effect.

The Court of Appeal declined to overturn the EAT’s decision.

Underhill LJ, giving the leading judgment, noted that the issue was whether Brazel’s holiday entitlement or holiday pay should be reduced to reflect the fact that she was a “part-year” worker. This term was coined by him to describe someone who did not work throughout the year.

The court rejected Harpur’s argument that a pro-rata principle should be applied to the accrual of leave for ‘part-year workers’; EU law did not require leave to be reduced pro-rata, and it wasn’t necessary to apply a pro-rata principle to the accrual of leave under the domestic Working Time Regulations.

The court noted that not applying the pro-rata principle could lead to anomalous results if ‘part-year workers’ worked a few weeks a year but still had 5.6 weeks leave per year. The example was given of a permanent employee who worked only one week of the year, earning say £1,000, but who would then be entitled to 5.6 weeks’ notional annual leave for which they would receive £5,600. Despite the risk of such anomalies occurring, however, the court considered that if employers choose to take on such staff on permanent contracts, the advantages of permanent employment may come with additional costs in holiday pay, which wouldn’t apply to freelancers.

Although Underhill LJ was careful to emphasise the importance of the existence of a permanent contract in his deliberations, it could potentially pave the way for casual workers not employed on a permanent contract to seek to run the same argument that their holiday pay should also not be subject to the 12.07% cap. Whether this would succeed remains to be seen.

Employers who currently use the 12.07% approach to pay holiday to their zero-hours staff with permanent contracts should certainly be analysing their potential exposure and consider their options. It is clear that holiday pay should be calculated by assessing a week’s pay and multiplying that by 5.6. How the 5.6 weeks’ holiday entitlement itself should be calculated for such workers (particularly those who do not work term-time only and who take enough leave to satisfy the WTR 1998 in any event), is still not clear.

Komeng v Creative Support Ltd UKEAT/0275/18

25 September 2019

Was the Employment Tribunal correct to consider the effect of discriminatory conduct on the Claimant (rather than the gravity of the acts of the Respondent) when assessing appropriate injury to feelings award?

Yes, held the EAT in Komeng v Creative Support.

Mr Komeng was employed by Creative Support Ltd as a Waking Night Care Worker. Following an employment tribunal hearing in February 2018 it was held that Creative Support’s failure to enrol Mr Komeng on a Level 3 NVQ course, in contrast to the way that named comparators of a different race had been treated, constituted unlawful direct race discrimination. Creative Support’s refusal to allow Mr Komeng to have some weekends off, after he asked if other employees could share the burden of weekend working, was also unlawful direct race discrimination.

The tribunal found that working with colleagues with less continuous service who had the Level 3 qualification and did not work every weekend must have caused significant upset and distress. It also noted that he had persevered with his aspirations to obtain better qualifications for several years whilst receiving no support. It considered that the appropriate level of compensation should be near the top of the lower band and assessed this as £8,400.

There was no error of law by the ET to place the award of injury to feelings compensation in the lower of the Vento bands. The consideration to be made was the impact of the act on the Claimant and not the gravity of the Respondent’s actions. The EAT made clear that it is not only one-off acts that fall within the lower Vento band. The tribunal had fully considered the impact on the Claimant and was entitled to place his award at the top end of the lowest band.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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