A look ahead at the key HR, employment and immigration issues for 2021.

The pandemic will undoubtedly continue to dominate the agenda – whether preparing for the end of the furlough scheme; considering the implications of the roll-out of the vaccine; supporting homeworking and employee wellbeing; or planning ahead for a return to the workplace. We may also start to see health and safety and furlough related cases coming to tribunal.

Aside from COVID-19 other important developments include the impact of the new points-based immigration system on recruitment; the introduction of IR35 in the private sector; and the extension of the National Living Wage to workers aged 23 and over from April. Also, expect more cases on holiday pay, employment status, and religion or belief discrimination.

COVID-19

Preparing for the end of the Coronavirus Job Retention Scheme (CJRS)

 

  • If you have furloughed employees and are relying on CJRS grants, consider what to do when the scheme ends on 30 April 2021.
  • If cost-saving measures are still required after the scheme closes, options include changing terms and conditions; restructuring; and redundancies. We do not yet know what will happen to the postponed Job Support Scheme. Any support available from May will be announced at the Budget on 3 March 2021.
  • Workbox users can find more information at the pages on Coronavirus; Redundancy; and Changing Terms & Conditions.

 

Managing homeworking / supporting mental health & wellbeing

 

 

  • Keep up-to-date with the current guidance on working from home and business closures in your organisation's sector and jurisdiction.
  • Regularly consider what action you need to take to satisfy your health and safety and data security obligations in relation to staff working from home.
  • Retain documentary evidence of how you manage homeworking, including policies and staff communications; completed home workstation assessments; and the support provided for employees' mental health and wellbeing.
  • Think about reviewing your policy on employees working from home but outside of the UK: our blog highlights the practical implications to be aware of including immigration, employment rights and tax issues.

 

Getting employees back to the workplace

 

 

 

 

 

If your workforce is currently based at home, when the time comes to move back to the workplace, amongst other things you will need to:
  • Carry out a workplace risk assessment and take steps to eliminate/reduce risks in line with government guidance;
  • Inform and consult with employees, or their representatives, on health and safety measures;
  • Consider potential discrimination risks and reasons why some employees might be reluctant to return to work (e.g. age/disability/pregnancy discrimination; health and safety concerns; childcare reasons);
  • Engage with employees about who will return first, and decide on how to deal with individual concerns and objections;
  • If testing is to be undertaken, introduce a process which takes account of data protection considerations; and
  • Support managers, and provide training, on the return to work plan.

 

Thinking ahead to the implications of having a vaccine

 

 

 

Some of the HR issues in connection with the roll-out of the COVID-19 vaccine include:

  • Whether to promote / facilitate / require the taking of the vaccine;
  • Options if employees refuse to take the vaccine;
  • The GDPR and privacy consequences of workers potentially being required to prove that they have been vaccinated.

There may be objections to a vaccination policy from employees with certain protected characteristics such as disability, pregnancy, age and religion or belief (fervent anti-vaxxers might argue that they are protected as having a philosophical belief for example).

 

Dealing with flexible working requests

 

 

Employees who have been able to work remotely and/or with adjusted working hours may well seek to make these arrangements permanent.You can only refuse a request for flexible working if one of the statutory prescribed business reasons applies. Requests will require to be considered in light of the arrangements that have been in place during lockdown. Be clear in advance as to how multiple and competing requests will be dealt with. Our blog looks at managing flexible working requests in the age of COVID-19.

 

Reviewing contracts and policies

 

Do any contractual terms or policies need updated to reflect new working or remuneration practices?

 

Gender pay gap reporting 

 

 

 

Due to the pandemic, enforcement of the gender pay gap reporting obligation was suspended for 2019-2020. Gender pay data reports are due by 4 April 2021 in the private and voluntary sectors, and by 30 March 2021 in the public sector.There has been an indication (but as yet no confirmation) that for the 2020-2021 report furloughed employees will count for headcount / bonus calculations; but that furloughed employees receiving less than full pay must be excluded when calculating mean and median gender pay gap figures and the percentage of men and women in each hourly pay quarter.

 

Brexit and immigration

New points-based immigration system

 

The UK's new single points-based immigration system ('PBS') has been in operation for non-EEA nationals since 1 December 2020. EEA & Swiss nationals (who do not qualify under the EU Settlement Scheme) can enter the UK under the PBS from 1 January 2021.Tier 2 has been rebranded the Skilled Worker route. If you intend to recruit medium or highly skilled migrants from the EU or elsewhere you will require a Skilled Worker/Intra Company Transfer Sponsor Licence. To find out more read our blog, or contact us.

 

EU Settlement Scheme

There is a deadline of 30 June 2021 for EU nationals and their family members who were in the UK before 31 December 2020 to apply through the EU settlement scheme

Business travel

 

 

From 1 January 2021 British nationals will only be able to stay within the Schengen area for a maximum of 90 days in any 180-day rolling period without a visa. A similar limit of 90 days will apply to visits to Bulgaria, Croatia, Cyprus and Romania.When carrying out business activities in the EU, employees may require a work visa even if staying for less than 90 days. Local legal advice should be sought on what immigration requirements apply in the relevant country. For more details, see our blog, or get in touch.

 

Employment legislation / workers' rights

 

There will be no immediate change to workplace rights from 1 January 2021 other than in relation to employer insolvency for UK employees working in the EU; and European Works Councils.In terms of the trade agreement with the EU the UK has agreed that it will not reduce the level of protection for workers below the standards that existed on 31 December 2020 in a manner affecting trade or investment.To what extent retained EU employment law might change in the future will also depend on parliamentary time and appetite. The areas most apt for reform include TUPE; collective redundancies; the Working Time Regulations; agency workers; and discrimination awards.

 

European Works Councils

 

From 1 January 2021 no new requests to set up a European Works Council (EWC) in the UK can be made. However, if a request to set up an EWC was submitted before 1 January 2021 it will be allowed to complete.From January where central management of an existing EWC is in the UK, it will need to be transferred to another member state; and if UK law applied to the EWC, the law of a remaining member state will automatically be applied instead.Businesses with an existing EWC should review those arrangements.

 

IR35, employment status, and atypical workers

IR35 in the private sector

 

 

 

On 6 April 2021 the off-payroll working rules will be extended to the private sector. End user clients will need to assess all off-payroll workers to determine:
  • if they are operating through a personal service company (PSC); and
  • if they are, whether they would be taxed as an employee for tax purposes were it not for the PSC.

If it is determined that the worker would be an employee for tax purposes, the entity which pays the PSC (which may be the end user client or a UK employment business in the chain) needs to account for PAYE income tax and employee and employer NICs. More information is available on Brodies' IR35 hub. We are also running a webinar on 19 January 'Here we go again – IR35 planning refresh': follow this link to sign up

 

Employment status

 

 

The government intends to introduce legislation to improve the clarity of the employment status tests (i.e. who is an employee, worker or self-employed); and to align the employment status frameworks for employment rights and tax purposes. Separately, a Private Members Bill is progressing which would merge the definitions of 'employees' and 'workers' and provide identical employment rights to both. Also expect more cases on employment status, including the outcome of the appeal to the Supreme Court in the Uber case which was heard in July 2020.

 

Right to request fixed working pattern

 

The government has proposed that workers without a fixed working pattern will have a right to request a more predictable work pattern after 26 weeks’ service (e.g. a fixed number of hours or fixed working days). This was announced in 2019 as part of a new proposed Employment Bill but the timescale is not currently known.

 

 

Notice of work schedules

 

There has been a consultation on providing workers with a right to reasonable notice of work schedules; and compensation for shifts cancelled without reasonable notice.

 

Continuity of service

 

Currently a gap of one week in employment can break continuous service. This is to be increased to four weeks (no timescale for this change as yet)

 

Holidays

Holiday pay cases

 

 

The Supreme Court is due to hear several holiday pay cases in 2021:
  • An appeal against the decision that holiday pay must include regular voluntary overtime (June 2021);
  • An appeal concerning the calculation of holiday pay for term-time zero hours workers (November 2021); and
  • An appeal involving a claim for a series of underpayments, including whether a gap of three months breaks the series (not yet listed).

Pay and sick pay

Increase in rates

 

Annual increases in the National Minimum Wage and statutory rates (such as statutory maternity and sick pay) will take effect from April 2021.

 

National living wage

 

From April 2021 the national living wage rate will apply to workers aged 23 and over. It currently applies to workers aged 25 and over.

 

Sleep-in shifts & NMW

 

The Supreme Court heard an appeal in February 2020 (in the Mencap case) regarding whether workers are entitled to the National Minimum Wage throughout sleep-in shifts. We are waiting for the decision.

 

Tips

 

The government is going to introduce a requirement on employers to pass on all tips and service charges to workers; and to distribute them fairly and transparently in line with a new statutory code of practice. This was announced in 2019 as part of a new proposed Employment Bill but the timescale is not currently known.

 

Sick pay

In 2019 the government consulted on reforms to statutory sick pay (SSP):
  • Providing SSP to the lowest paid workers;
  • Allowing flexible phased returns to work after two or more weeks of absence, where employees would receive part wage and part SSP;
  • Simplifying the eligibility rules by removing the identification of specific qualifying days for SSP; and
  • Introducing a right to request workplace modifications on health grounds (similar to the existing right to request flexible working) for employees not covered by the duty to make reasonable adjustments (potentially for absences of four or more weeks).

Confidentiality and post-termination restrictions

Non-compete clauses

 

A consultation is currently taking place on whether to reform the use of non-compete clauses. Options include banning them completely; or providing that they are only enforceable if the employer continues paying remuneration during the restricted period. The consultation closes on 26 February 2021.

 

Non-disclosure agreements

Following a consultation, the government has indicated that it will legislate on the use of confidentiality clauses in employment contracts and settlement agreements, for example to ensure that they cannot prevent disclosures to the police, regulated health and care professionals or legal professionals.

Data protection

International data transfers

 

The European Data Protection Board published for consultation its recommendations on international data transfers, including guidance on the steps organisations should take when transferring personal data outside the EEA. The consultation closed on 30 November 2020. For more information read this blog.

 

Criminal record checks

Reform of disclosure regime - Scotland

 

 

 

When the Disclosure (Scotland) Act 2020 comes into force (date not yet known), it will make significant changes to the criminal record checks regime and the Protecting Vulnerable Groups (PVG) Scheme in Scotland including:
  • Level 1 disclosure will replace basic disclosure; and Level 2 disclosure will replace standard and enhanced disclosures, and PVG Scheme records.
  • Membership of the PVG Scheme will be mandatory for five years for those working with children and protected adults in "regulated roles". It will be an offence for an individual to work in a regulated role without scheme membership and for employers to employ such an individual.
  • Automatic disclosure of convictions accrued between the ages of 12 to 17 years of age will end.

 

Reform of disclosure regime - England

 

The government is proposing changes to the disclosure of criminal records to employers in England and Wales. Some sentences of over four years will no longer have to be disclosed following a rehabilitation period.

 

Discrimination, harassment, and equal pay

Ethnicity pay gap reporting

 

A consultation on introducing mandatory ethnicity pay gap reporting for employers with 250 or more employees closed in January 2019. It is being reported that there is strong support for its introduction. Parliament is set to debate the issue.

 

Sexual harassment

 

 

 

 

 

In December 2018 the government announced that a new statutory code of practice on sexual harassment at work would be introduced. We don't yet know when this will happen.

The government has also consulted on:

  • Confidentiality and non-disclosure agreements;
  • Strengthening protection against third-party harassment at work (e.g. by clients or customers);
  • A mandatory duty on employers to take reasonable steps to protect workers from sexual harassment at work;
  • Extending the three-month time limit for lodging discrimination claims; and
  • A new legal duty to publicly report policies on preventing and resolving sexual harassment.

 

Equal pay in the private sector

 

A substantial number of equal pay claims have been raised against Asda, Sainsbury’s, Tesco and Morrisons. Store workers (mainly female) claim that they should have been paid the same higher rate as warehouse workers (mainly male). In one of the Asda cases the Court of Appeal decided that store workers could compare themselves with warehouse workers despite working almost exclusively at different sites. The Supreme Court heard an appeal in July 2020, we are currently waiting for the decision.

Volunteers and interns

 

The government is considering whether additional protections are needed for volunteers and interns in relation to all forms of discrimination and harassment.

Families

Publishing policies

 

At the end of 2019 the government consulted on whether to compel employers with 250+ employees to publish details of their ‘parental leave and pay’ policies.

 

 

Review of family-friendly leave 

 

A consultation on some high-level options for reform of the current rights to maternity, paternity, parental and shared parental leave and pay closed at the end of November 2019. One option is a single, new model for family-related leave, with set periods of non-transferable and transferable leave.

 

 

Domestic abuse

 

The government consultation on introducing employment rights for survivors of domestic abuse closed in September 2020.

 

Carer's leave

 

A consultation on introducing a new right to a week's leave for unpaid carers closed in August 2020.

 

Neonatal leave and pay

 

Parents of babies who have spent a minimum of two continuous weeks in neonatal care immediately after birth are to receive one week of neonatal leave for every week that their baby was in neonatal care, up to a maximum number of weeks. This was proposed in 2019 as part of a new Employment Bill but the implementation date is unknown.

 

Flexible working

Making flexible working the default

 

The government has previously indicated that it intends to make flexible working the default position unless an employer has a good reason not to allow it. This was proposed in 2019 as part of a new Employment Bill, but the timescale is not currently known.

 

Adverts and policies

 

 

 

Towards the end of 2019 there was a consultation on:  
  • Introducing a requirement that job adverts must say whether the role is open to flexible working; and an obligation on employers to record via the gender pay gap reporting portal whether they have advertised jobs as open to flexible working.
  • Compelling employers with 250+ employees to publish details of their flexible working policies; and to provide this information as part of the gender pay gap reporting process.
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Redundancy

Extended protection for pregnant women & new mothers

 

The priority given to a pregnant employee or a woman on maternity leave for any suitable alternative vacancy in a redundancy situation is to be extended. It will apply from the point at which an employee informs their employer that they are pregnant until six months after a new mother has returned to work. Redundancy protection will similarly be extended for those taking adoption or shared parental leave. 

 These changes were announced in 2019 as part of a new proposed Employment Bill but the timescale is not currently known.

 

Employment tribunals / new enforcement body

Modernisation and reform of tribunals

 

 

 

 

 

In response to COVID-19 the Presidents of the Employment Tribunals issued a 'road-map' which, amongst other things, set out their vision for video hearings and the use of the Cloud Video Platform (read about the tribunals' response to the pandemic in our blog).

Other reforms being piloted include recording hearings and introducing a standard case management platform (Employment Case Management).

Following earlier consultations, the tribunal and early conciliation rules were amended at the end of 2020 to reduce bureaucracy and increase capacity.

Power for the administration and management of Scottish employment tribunals had been expected to be devolved to the Scottish Parliament from April 2020. We are waiting for further information.

 

Tribunal fees

 

The government has previously indicated that it intends to reintroduce employment tribunal fees in some format, but no detail or timescale is available.

 

New single enforcement body

 

 

 

 

 

There is to be a new single labour market enforcement agency to enforce employment rights with powers over:

  • Payment of the National Minimum Wage;
  • Labour exploitation and modern slavery;
  • Holiday pay for vulnerable workers;
  • Regulation of employment agencies;
  • Regulation of umbrella companies operating in the agency worker market; and
  • Licences to supply temporary labour in high risk sectors.

This was announced in 2019 as part of a new proposed Employment Bill but the timescale is not currently known.