Employment law updates: important changes for employers

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. 

For any other Covid-19 Coronavirus related business advice please visit our dedicated Coronavirus COVID-19 legal advice & support for businesses hub.


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. Read our full blog here.


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 Services team

For any other Covid-19 Coronavirus related business advice please visit our dedicated Coronavirus COVID-19 legal advice & support for businesses hub.

 


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 pandemicthe figures for employees classing themselves as “working from home” (including a base in and around the home) stood at around 13-14% 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 measureClick here to read more


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. 

For any other Coronavirus COVID-19 related business advice please visit our dedicated page Coronavirus COVID-19 legal advice & support for businesses.

 


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. 

Thefinancial package includes the CoronavirusJobRetentionScheme whereby 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. Thescheme will backdate back to 1 March and is open initially for 3 months, however, the government has stated that it will extend this schemeif 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. 

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. 

For any other Coronavirus COVID-19 related business advice please visit our dedicated page Coronavirus COVID-19 legal advice & support for businesses.


Online isolation notes launched - providing proof od 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. 

For any other Coronavirus Covid-19 related business advice please visit our dedicated page Coronavirus COVID-19 legal advice & support for businesses.

 


 

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

(C) All workers will be given the right to a written statement of terms.

(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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