The Home Office has published a revised Code of Practice on preventing illegal working, covering the changes to the right to work check requirements for EEA citizens which come into effect on 1 July 2021. In this article, Mayer Brown’s James Perrott looks at the changes that the Code introduces, how this will affect UK employers, and the areas of continued uncertainty.
In the latest episode of our Employment podcast, we look at two cases relevant to employers looking to bring employees back to work. The first concerns an employee dismissed because of ‘upset and friction’ caused by the way in which he was carrying out his health and safety responsibilities and whether that dismissal was automatically unfair because of the special protections around health and safety dismissals in the Employment Rights Act. And the second is a ‘fire and re-hire’ case about when an employer can fairly dismiss an employee who refuses to agree to Covid-related changes to their employment contract.
Please click on the link to access the podcast: UK Employment Law | Perspectives & Events | Mayer Brown
In our latest podcast, we look at an unfair dismissal case about an employee who refused to return to work due to Covid-related safety concerns, and a case about mandatory vaccination policies and whether they can amount to a breach of human rights.
As an update to our recent post, the Home Office has now pushed back the date for the changes to Right to Work checks required by UK employers. The new rules will now begin on 21 June rather than 18 May, as had previously been proposed.
Please click here to read the update by James Perrott, Mayer Brown’s Head of Global Mobility for UK and Europe: Ending of Covid-19 adjustment to UK Right to Work checks postponed | The Mobile Workforce
Since March last year, due to Covid-19, the Home Office has allowed employers to check an employee’s immigration status in the UK by using scans or copies of documents instead of having to see the original documents. From 17 May, this adjustment will cease and employers will once again be required to check original documents, unless they are able to use the Home Office on-line checking service, which is only available for migrant workers. Read our full blog post by James Perrott, head of Mayer Brown’s Mobility & Migration practice in Europe:
The pensions press has been abuzz with comment on the expanded range of powers given to the Pensions Regulator (“TPR“) by the Pension Schemes Act 2021 (the “Act“) which are expected to come into force in Autumn 2021. These include imprisonment or unlimited fines for some offences, civil penalties of up to £1 million and enhanced information gathering powers with penalties for non-compliance.
In March 2021 the Financial Conduct Authority (“FCA”) produced an updated joint guide for employers and trustees on providing financial support to employees and members. The guidance is an updated version of a document published in October 2020. The updated guidance will be particularly useful for employers that provide in-house pensions administration services.
The government has set the automatic enrolment earning figures for the 2021/22 tax year as follows:
- Earnings trigger: £10,000
- Qualifying earnings band: £6,240 – £50,270
The earnings trigger is the level of earnings that a jobholder must receive in order to be eligible for automatic enrolment. The level of the earnings trigger has remained unchanged since the 2014/15 tax year.
The qualifying earnings band is the earnings in respect of which an employer must pay employer pension contributions for jobholders who have been automatically enrolled. The ends of the band for 2021/22 are equivalent to the lower and upper earnings limits for National Insurance contributions, which will make payroll administration easier for employers.
Employers should ensure that their payroll processes are updated to reflect the new figures which came into force on 6 April.
The pension scheme(s) that an employer uses to meet its automatic enrolment duties must meet certain “quality requirements”. The government is required to review certain of these requirements every three years. The government conducted a review of these requirements for defined benefit and hybrid pension schemes in late 2020 and has recently confirmed that it will not make any changes to the current requirements. The next review will take place in 2023.
The Supreme Court has delivered its decision in the Asda equal pay litigation and, as many expected, it has upheld the decisions of the previous courts. As such, Asda’s female retail store employees can now proceed with their claim by comparing themselves to the higher paid male distribution depot employees. The female employees are claiming that their work is of equal value to that of the male distribution employees, and seek compensation for the difference in pay dating back six years from the date on which they brought the claim.
The preliminary issue arose in the Asda case because the retail store employees are not employed at the same site as the distribution depot staff. Where that is the case, equal pay law requires the comparator group to be employed on “common terms” to the terms applicable to them in the site where the claimants are based, i.e. terms that are broadly the same. Here, there were no distribution employees based at the retail stores, and so the court had to consider the hypothetical question of what terms the distribution staff would have been employed on if they had been based at the stores.
The Supreme Court clarified various key points:
- The question was whether the distribution staff would have been employed on common terms to their current terms, if they were based at a retail store.
- The common terms requirement was simply to filter out comparators who could not be used because the differences between them and the claimants were based on geographical, and possibly also historical, factors. Those cases would be exceptional.
The Supreme Court said that there was no need to consider whether the retail employees and depot employees could actually work alongside one another (e.g. in a supermarket), but that one had to imagine that the depot workers could carry out their roles at a location at the claimants’ establishment – e.g. at a distribution depot adjacent to a supermarket – before asking whether the distribution employees would, in such an imagined scenario, continue to be employed on the same, or substantially the same, terms as they were employed at their own establishment. The court also said that this “threshold test” regarding common terms should be kept within tight bounds and should not lead to a prolonged enquiry by the employment tribunals – a line-by-line comparison of terms and conditions is not required.
It should be noted that this is not the final decision in this case, however, as the claimants still need to show that the work they perform is of equal value to the distribution employees, and Asda may be able to show that there was a ‘genuine material factor’ justifying the difference in pay, which would provide a defence to the claim. The judgment does, however, clarify the law regarding comparisons between employees at different sites, and that the threshold test for comparing terms should not be a major hurdle for claimants. As a result, we may see further similar claims in which claimants choose comparators who are based at different sites.
Chancellor Rishi Sunak has announced in yesterday’s Budget (3 March 2021) that the Coronavirus Job Retention Scheme (“furlough scheme”) will be extended until the end of September. The furlough scheme, under which the government pays 80% of employees’ wages for the hours they cannot work during the pandemic – up to a limit of £2,500 a month – had been due to close at the end of April 2021. As the furlough scheme continues, employers will be expected to contribute 10% of a furloughed worker’s wages in July, rising to 20% in August and September, as the economy reopens.
The chancellor has also announced that the self-employment income support scheme (SEISS) is being extended until September 2021. A fourth cash grant under the scheme will run from February to April 2021, covering 80% of three months’ average trading profits (capped at £7,500). Access to the scheme has been widened, taking into account tax returns for 2019-20 (provided they were submitted by 2 March 2021) and will be open to those who became self-employed in the tax year 2019-20, which will result in some 600,000 more self-employed people becoming eligible for the scheme. There will also be a fifth grant covering May to September 2021, which will be based on the reduction of turnover in the year April 2020 to April 2021. For those whose turnover has fallen by 30% or more, the grant will remain worth 80% of three months’ average trading profits (capped at £7,500), whereas those whose turnover has fallen by less than 30% will be eligible for a 30% grant (capped at £2,850).