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:

UK Right to Work Checks: Sunset of the Covid-19 Concession and Brexit Impact | The Mobile Workforce

 

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.

Continue Reading New powers for the Pensions Regulator – should employers be concerned?

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.

Continue Reading Supporting employees with financial matters

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).  

The anticipation is over! The Pension Schemes Act 2021 received Royal Assent and became law on 11 February. The Act aims to enhance the security and sustainability of pensions in the UK, and to protect defined benefit (“DB“) pension schemes. The Act makes some significant changes to the pensions world, most of which will be brought into effect and fleshed out through Regulations and guidance from the Pensions Regulator (“tPR“). This blog briefly sets out the key provisions of the Act from an employer’s perspective. Continue Reading The Pension Schemes Act 2021 – What employers need to know

We are nearly one year on since the UK government announced its first national “lock-down”, yet here we are in February 2021 and the government guidance is still for anyone who can work effectively at home to do so. Whilst coronavirus vaccinations are being rolled out across the country, in all likelihood working from home will continue to be the norm for many UK office-based workers for some time yet. This post gives a reminder to employers about their health and safety obligations towards homeworkers.

What are an employers’ H&S obligations to homeworkers?

Under section 2(1) of the Health and Safety at Work Act 1974, employers have a duty to take steps that are reasonably necessary to ensure the health, safety and welfare of all their employees, and homeworkers are no exception.

We have included links below to the ACAS and HSE guidance for employers on the health and safety of homeworkers, which are helpful reminders of an employer’s obligations, particularly in light of the coronavirus pandemic.

https://www.acas.org.uk/working-from-home/health-safety-and-wellbeing

https://www.hse.gov.uk/toolbox/workers/home.htm  

What are the obligations on homeworking employees?

Homeworkers must take responsibility for their own health and safety too.

Employers should encourage employees to bring any physical or mental health risks they are facing to the attention of their managers. Employees should also undertake that they will maintain any office equipment which they buy themselves or are provided with, and that they will use equipment carefully and in line with instructions provided. Employees should also carry out a self-assessment of their workspace and homeworking equipment and flag any risks to their employer.  Encouraging employees to take these steps will help an employer to identify any risks their employees are facing and then to identify the reasonable steps they need to take to remove or minimise the risks.

Do employers have to carry out a risk assessment?

Employers have a legal duty to carry out suitable and sufficient risk assessments of their employees’ work activities, including those working from home. Employers should then use this to take measures to remove hazards or minimise the risks. Employers should review their risk assessments regularly.

Of course, at the moment, employers cannot visit employees’ homes to carry out risk assessments. The HSE guidance recognises that, and states that employers should take alternative measures, such as providing information to employees about working safely from home, and asking homeworkers to carry out a self-assessment of their workspace and equipment.

Employers should be particularly mindful of the risks to employees of using display screen equipment (DSE). Whilst the HSE guidance states there is not an increased risk for those working from home temporarily working with DSE, there is an increased risk for those working from home on a long term basis. Given a lot of employees have been working from home for the better part of a year now, employers should ask employees to carry out an assessment of their use of DSE. The HSE website provides a checklist which employers could ask employees to complete.

https://www.hse.gov.uk/pubns/ck1.pdf

Do employers have to provide employees with office equipment and contribute towards homeworking expenses?

There is no legal obligation for employers to provide employees with equipment for homeworking, and we have seen a range of approaches taken by employers. Whilst it is not mandatory, the guidance provided by ACAS states that it is important for employees to have the equipment that they need for working from home, and therefore employers should consider this carefully. Some employers have allowed employees to borrow equipment from the office; some have sent employees equipment such as ergonomic chairs, desks and IT equipment; others have agreed to reimburse employees for their expenditure on office equipment upon receipt of evidence. Supporting employees in this way may help an employer demonstrate they are acting in line with their duty of care to their employees’ health and safety. Whichever approach is taken, employers should make sure that they have policies in place which set out the obligations on both parties.

If an employer is supplying equipment to employees, they should make sure it is suitable for its purpose, maintained in good working order and inspected regularly. Given employers are not currently able to visit an employee’s home to inspect equipment, employers should require employees to do so, and provide instructions if necessary. Employers should also make sure that the equipment is covered under the employer’s insurance policy or, if that is not possible, they should ask employees to cover the equipment under their own home insurance policies. Some employers have offered to pay any premium an employee is charged for the increased coverage.

Employers should be mindful that, from an employment law perspective, the provision of equipment to an employee with a disability (or reimbursement of the employee’s expenses) may be considered a reasonable adjustment under section 20 of the Equality Act 2010.

Employers are also not legally obligated to contribute towards the increased expenses of employees who are working from home, such as increased electricity costs. Some employers have agreed to meet these costs (or a proportion of them). If employers choose to do so they should have a clear policy in place setting out the procedure for reimbursement, and employees should be reminded that the employee’s domestic supply remains their responsibility, not the employers.

What about when the office re-opens?

It is obviously important that employers keep up-to-date on government guidance on how to create a safe workplace when employees start returning to the office.

The government is frequently updating its guidance on working safely, across different types of workplace. The current guidance for office-based employers recommends employers carry out a Covid-19 risk assessment of the office, increase the frequency of office cleaning, require visitors to wear face coverings, encourage social distancing, review office ventilation, promote the use of ‘test and trace’, and turn away anyone with symptoms.

https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19/offices-and-contact-centres

Can employers legally enforce a mandatory vaccine policy?

Eager to return to a “safe” normality after almost a whole year of pandemic restrictions, some employers have gone so far as to commit to a mandatory “no jab, no job” policy.  This has raised many questions as to the legality of enforcing a mandatory vaccine policy among staff.

This post looks into the key questions being asked by employers and the factors they should be considering once vaccines are made available to more of the population.

1.  Do employers have a legal right to require employees to be vaccinated?

Vaccines are not currently mandatory and employers do not have a legal right to require employees to have the vaccine.  According to Government guidance (https://www.acas.org.uk/working-safely-coronavirus/getting-the-coronavirus-vaccine-for-work), employers should support staff in having the Coronavirus vaccine, but they cannot force staff to be vaccinated.

Employers may find it useful to talk with their staff about the vaccine and share the benefits of being vaccinated.  If an employee does not want to be vaccinated, the employer should listen to their concerns.  Employers should be sensitive towards individual situations and must keep any concerns confidential, in particular as some people may be resistant to taking the vaccine on health grounds or on grounds that are protected from discrimination under the Equality Act 2010.

UK employers have obligations under health and safety law to reduce health risks to employees and others to a level which is as low as reasonably practicable.  The vaccine should be considered as part of Covid-19 risk assessments, as a potential additional measure to control the risks associated with contracting the virus at work.  Employers may decide, following such a risk assessment, that having a vaccinated workforce would be necessary and reasonable in reducing the risk.  Therefore, an instruction to have the vaccine could be regarded as a ‘reasonable instruction’ on the part of the employer, but that will depend on the circumstances.

2.  Can employers require employees to disclose or to produce proof of whether they have been vaccinated?

Requiring evidence of vaccination gives rise to significant data protection issues.  Details about an employee’s vaccination status is likely to be considered special category health data, which means employers will have to identify a particular GDPR exemption for processing it.  Potential grounds may include where it is necessary for performance of rights and obligations in connection with employment, such as maintaining a safe place of work.  A policy would also be required, covering the collection of such data and its retention (i.e. only retaining the information for as long as it is needed).

Even if permitted by privacy law, an employer cannot require an employee to disclose such information against their will. Whether any adverse action could be taken against an employee who refuses is likely to depend on the grounds of their objection, but it would seem reasonable for an employer to be permitted to ask the question as part of a wider policy of encouraging staff to be vaccinated.

3.  Can employers take action if employees do not want to be vaccinated? 

Whether an employer can take action will depend on a number of factors, including whether there is a vaccination policy in place and whether being vaccinated is necessary for the employee to do their job.  On one view, it is arguable that a requirement for vaccination is a reasonable management instruction in order for an employer to provide a safe place of work.  Any such policy, however, is likely to have to make room for exceptions based on employees’ reasons for refusal.

For example, the reason for refusal to have the vaccine could be protected from discrimination by the Equality Act 2010.  Indeed, the COVID-19 Secure Guidelines (https://assets.publishing.service.gov.uk/media/5eb97e7686650c278d4496ea/working-safely-during-covid-19-offices-contact-centres-041120.pdf) suggest that employers should be mindful of the particular needs of those with protected characteristics.

Employers could be at risk of indirectly discriminating against individuals with certain protected characteristics if they plan to treat vaccinated staff differently from unvaccinated staff.  Examples of different treatment could include requiring vaccinated staff to return to work whilst preventing unvaccinated staff from entering the workplace or not allowing them to travel abroad for work.    If employees are in the unvaccinated group due to a protected characteristic, this could give rise to issues of indirect discrimination.

Individuals with the following protected characteristics could potentially be indirectly discriminated against in these circumstances:

Age

The vaccine roll-out is being prioritised largely based on age, with older (and therefore higher risk) individuals being offered the vaccine first.  This means that middle-aged and younger members of the workforce will not be eligible for vaccination until around September 2021.

Any differences in treatment between vaccinated and unvaccinated staff could, therefore, be indirectly age discriminatory unless the treatment can be objectively justified.

Disability

Individuals with certain medical conditions are being advised not to have the vaccine. These employees may be disabled for the purposes of the Equality Act 2010, and their decision not to get vaccinated could be ‘something arising from’ that disability. Differential treatment could, therefore, lead to successful indirect disability discrimination claims unless the employer could show an objective justification for the treatment. If employers press employees for reasons why they will not have the vaccine, employers could be put on notice of a disability they did not know about, and must then be prepared to make necessary reasonable adjustments for the employee.

Pregnancy and maternity

Expectant mothers have also been advised not to have the vaccine.  Employers therefore need to ensure that any vaccination instructions or policies cover pregnant women in order to avoid indirect discrimination.  It would also be prudent to take into consideration the fact that many women choose not to tell their employer of their pregnancy until three months’ gestation, and also the fact that women who are trying to get pregnant may also refuse a vaccine.

Religion or belief

An anti-vaccination stance could amount to a protected philosophical belief and therefore attract protection under the Equality Act 2010.

A successful claim using this protected characteristic would need to establish that the belief was genuinely held, cogent, serious and worthy of respect in a democratic society.

If an employee refuses to be vaccinated because of a protected characteristic, and this results in detrimental or disciplinary action from their employer, they may be able to issue a direct or indirect discrimination claim and claim constructive unfair dismissal if they resign in protest.  It is important to remember that discrimination claims have no financial cap, so a successful claim could potentially come with severe costs consequences in damages for the employer.

Future developments

It will be crucial for employers to stay on top of updates on this matter as the vaccine begins to be rolled out more widely.  We hope to provide further updates as they arise.

2021 is set to be another eventful year for employers and employment lawyers alike, with changes to the employment landscape continuing to develop apace.  Below, we take a look at some of the key things for employers to look out for in the coming year.

IR35/off-payroll tax rules 

While many employers breathed a sigh of relief last year with the delay of the new off-payroll tax rules (IR35) to 6 April 2021 due to the pandemic, the new implementation date is fast approaching.  Under the new rules, businesses (other than those falling within the small business exemption) will be responsible for deciding the employment status of independent contractors for tax purposes, where they operate through an intermediary.  Employers should turn their attention back to ensuring they are ready for the upcoming changes and the additional administrative burden the new regime will entail.

Doing business in a (post-)Pandemic world?   

With so much business having adjusted to remote ways of working over the last year, many may never fully return to previous ways of working.  This may involve a reduction in office space, or the closure of offices altogether, with more flexible working remaining a significant part of the “new normal”.  One interesting question that may arise from more widespread flexible working is what effect this will have on workers’ pay.  In a world where geographic location is seemingly less and less important, it may become harder to justify significant regional variations in pay.  While employers cannot unilaterally reduce pay without breaching an employee’s contract, they will also need to consider the risk of equal pay claims for the same or similar roles (even if done in different locations, as we have seen from the Asda litigation).

The changes brought about by the pandemic will also lead many businesses to restructure their operations during 2021 as a result of a greater reliance on technology and new ways of conducting business.  In addition, the economic downturn faced by most businesses will inevitably lead to further redundancy waves. While the furlough scheme has been extended to the end of April 2021, it remains to be seen what further support will be offered to businesses and to protect jobs after this date. The postponed Budget from November last year has now been set for 3 March 2021, which may see the announcement of further support. Notably, however, this date is more than 45 days ahead of the end of the furlough scheme, this being the minimum waiting period, for collective consultation purposes, for businesses proposing 100 or more redundancies within a 90 day period.

Inclusion and Diversity

With the #MeToo and Black Lives Matter movements maintaining momentum into 2021, this year will see a continued focus on diversity and inclusion for employers.  The government is currently considering the introduction of ethnicity pay gap reporting, in addition to a new legal duty on employers to protect workers from sexual harassment in the workplace.  If introduced, the latter would enable the Equality and Human Rights Commission to take enforcement action against employers, regardless of whether an employment tribunal claim has been raised.

Brexit 

While the UK is now able to depart from EU employment law (subject to ‘level playing field provisions’ in the Brexit trade deal), it is unlikely that this will lead to many important changes in the immediate future.  However, a new points-based immigration system is now in place, making it harder for employers to hire EU or EEA nationals, other than Irish nationals, who will now require a visa to live and work in the UK, unless they have pre-settled or settled status under the UK’s EU settlement scheme. Employers will need to ensure the new rules are part of their Right to Work checks for new employees.

It is also possible that Brexit may impact the current arrangements for the free flow of personal data between the UK and EU, although this is considered unlikely.  Under terms of the trade deal, personal data can continue to flow freely between the EU and UK for at least four months (with a possible further extension), and it is hoped that the EU will make an adequacy decision in this time in relation to the UK.  Given the UK has already adopted the GDPR, an adequacy decision will avoid employers having to put in place lengthy alternative contracts in relation to the transfer of personal data.

With some key cases also on the horizon, including the Supreme Court’s decision in the long-running Uber case which will settle the question of whether its drivers are workers (and so entitled to certain employment rights) or independent contractors, 2021 looks to be another significant and challenging year in the world of employment law.