Emplaw Monthly - End of February 2020
New Articles From Our Authors
Government announcement on new points-based immigration system
How does EU law apply in the UK after Brexit?
UK points-based immigration system
The government has published a policy statement setting out its plans for a new UK points-based immigration system.
The policy statement includes information on:
· the scope of the points-based system
· salary and skills thresholds for skilled workers
· a route for highly-skilled workers
· reducing the overall number of lower-skilled workers
· the visa process
· crossing the UK border
· engagement and outreach
· Migration Advisory Committee analysis of a points-based system
For more information please see the article from Emplaw authors Lewis Silkin
National Living Wage Updates
Government response on salaried hours work and salary sacrifice consultation
Through the consultation on salaried hours work and salary sacrifice schemes, the government has gathered evidence on elements of the NMW rules that could be improved whilst maintaining existing worker protections.
The consultation opened on 17 December 2018 and closed on 1 March 2019. Following its consideration of over 100 responses, and discussions with a wide range of stakeholders, the government will make three substantive changes to the NMW rules relating to salaried hours workers:
1. The government will amend the NMW Regulations to allow salaried hours workers to be paid in additional equal instalments, such as fortnightly or four-weekly;
2. The government will amend the NMW Regulations to provide employers with the discretion to choose a calculation year for their workers; and
3. The government will amend the NMW Regulations to allow employers to make premium payments to their salaried hours workers in respect of basic hours, and to allow salaried hours workers’ contracts to specify these premium pay arrangements. These payments will not form part of the workers’ remuneration for calculating NMW pay.
The government found some evidence, through the consultation, that salary sacrifice and pay deduction arrangements are being withdrawn by employers, in some cases due to concern over non-compliance with the NMW rules.
However, evidence also made clear that allowing workers and employers to agree rates of pay below the legal minimum would undermine the integrity of the NMW rules and present risks to the lowest-paid workers. The government does not therefore propose to amend the NMW Regulations relating to these arrangements. However the Secretary of State issued a Direction in February 2020 which provides that, if following an HMRC investigation, the only reason minimum wage was underpaid was because the employer made a deduction from a worker’s pay/ enrolled them in a salary sacrifice scheme, with the worker’s consent, and the worker has received the correct good/benefit as a result of that deduction (e.g. childcare vouchers, savings club) , the employer, who had not breached the NMW legislation in the recent past, will not face a penalty (or be named). The Policy on HM Revenue & Customs enforcement , prosecutions and naming employers who break National Minimum Wage law has been updated accordingly.
Draft Minimum Wage (Amendment) Regulations
The Draft Minimum Wage (Amendment) Regulations 2020 have been published. The Regulations come into force on 1 April 2020.
Regulation 2(2) increases the rate of the national minimum wage for workers who are aged 25 or over (“the national living wage rate”) from £8.21 to £8.72 per hour.
Regulation 2(3)(a) increases the rate of the national minimum wage for workers who are aged 21 or over (but not yet aged 25) from £7.70 to £8.20 per hour.
Regulation 2(3)(b) increases the rate of the national minimum wage for workers who are aged 18 or over (but not yet aged 21) from £6.15 to £6.45 per hour.
Regulation 2(3)(c) increases the rate of the national minimum wage for workers who are aged under the age of 18 from £4.35 to £4.55 per hour.
The apprenticeship rate applies to workers within regulation 5(1)(a) and (b) of the 2015 Regulations. Regulation 2(3)(d) of these Regulations increases the rate for such workers from £3.90 to £4.15 per hour.
Government evidence on compliance and enforcement of the National Living Wage and the National Minimum Wage
BEIS has published a report providing an overview of Minimum Wage enforcement activity during 2018/19.
Sleeping and Working
Earlier this month, the Supreme Court heard the Mencap appeal and judgement is awaited. The case concerns whether home workers who are required to remain at home in their shift and/or residential care workers who ‘sleep in’ are entitled to the national minimum wage for time that is not spent actually performing some specific activity.
ICO statement on data protection and Brexit
The Information Commissioner’s Office has issued a statement to the effect that the General Data Protection Regulation will continue to apply during the Brexit transition period.
Acas guidance on non-disclosure agreements
Acas has published new guidance on non-disclosure agreements to help employers and workers understand what these are and to prevent their misuse.
Emplaw authors Lewis Silkin have prepared a useful table to clarify current legal and regulatory requirements, best practice and future proposals for using NDAs in both settlement agreements and employment contracts.
Guidance on the Coronavirus
Acas guidance that advises that it would be good practice for an employer to treat self-quarantine as sick leave as well as newly published government guidance.
Off-payroll review and working commencement rules
The Government has published its review Review of changes to the off-payroll working rules confirming that implementation will take effect on 6th April as planned. The Review confirms that businesses will not have to pay penalties for inaccuracies in the first year, except in cases of deliberate non-compliance
The government has also published detailed guidance including a useful flow chart
In the course of the review HMRC made an announcement to give business more time to prepare.Changes to the operation of the off-payroll working rules will only apply to payments made for services provided on or after 6 April 2020 (not to payments after that date in relation to services provided before). The Employment Status Manual has been updated.
The government also published draft secondary legislation on the IR35 which closed for comment on 19th February.
The changes will shift responsibility for operating the rules from the worker’s company to the medium and large-sized organisation they work for to improve compliance, extending the rules that already apply to the public sector.
Enhanced pay for shared parental leave is not sex discrimination
The Supreme Court has refused permission to appeal in the case of Chief Constable of Leicestershire Police v Hextall, so that the Court of Appeal’s judgment stands. The Court of Appeal found that that failure to enhance pay for shared parental leave was neither indirect discrimination nor a breach of equal pay rights.
Impairment should have lasted for 12 months under para 2(1)(a) of Schedule 1 of Equality Act
Section 6 of the Equality Act 2010 provides that a person (P) has a disability if
‘(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long term effect on P’s ability to carry out normal day-to-day activities’.
Paragraph 2 of Schedule 1 states:
‘(1) the effect of an impairment is long-term if -
Employing domestic staff in diplomatic residence was not a ‘commercial activity’ so as to fall outside protection of diplomatic immunity
‘1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state. He shall also enjoy immunity from its civil and administrative jurisdiction except in the case of [...]
Ethical veganism can be a protected ‘philosophical belief’
Section 10 of the Equality Act 2010 deals with religion or belief and provides:
Off shore worker could bring claim in Scottish court
Until the repeal of s.196 of the Employment Rights Act 1996 the jurisdiction of the ET was territorial in scope; this territorial rule was removed in 1998. The courts have developed a body of case law which sets out the principles that determine whether the UK ETs have jurisdiction to hear a claim.
Employer’s rebuttal of whistleblowing allegations was a detriment but not on the ground of the protected disclosure
Section 47B of the Employment Rights Act 1996 sets out the basic principle which affords protection to a whistle-blower:
"A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure."