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Emplaw Monthly - End of August 2020

NEW FROM OUR AUTHORS

Cloisters Toolkit: Returning to work in the time of Coronavirus

Updated as of 18th August  Cloisters' expert employment barristers have produced an invaluable and detailed online guide, Returning to Work in the Time of Coronavirus, which explores the critical legal issues which arise as businesses re-open.

Read here

Flexible working post Covid-19 - sea change or nothing new?

A useful article from our authors Lewis Silkin considering the legal position and the practicalities for employers in dealing with flexible working requests, including requests to work from abroad

Read here

FOCUS ON CONTENT

Emplaw has a suite of user friendly information about redundancy with cards covering consultaton, payment calculations, notifying HMG, Trial Periods and much more.

https://www.emplaw.co.uk/lawguide/i78.html

NEWS

EMPLOYER/EMPLOYEE ADVISOR NEED TO KNOW

DWP Redundancy factsheet for employers

Updated 21st August, The Department for Work and Pensions has published a factsheet with information and guidance for employers who will have to make redundancies. It includes details of a free ‘Rapid Response’ service to help employers and their employees through the process of redundancy and signposts organisations that can assist such as Acas and The Insolvency Service and, for Scotland, the Partnership Action for Continuing Employment (PACE). 

https://www.gov.uk/government/publications/redundancy-support-for-employers

Updated Form HR1

The HR1 is the form employers are legally obliged to submit to the government  to give advanced notification of collective redundancies. Guidance for employers and an updated form have been published by the Insolvency Service’s Redundancy Payments Service.

https://www.gov.uk/government/publications/redundancy-payments-form-hr1-advance-notification-of-redundancies/advanced-notification-of-redundancies-guidance-for-employers

 

LITIGATION AND LEGISLATION

IR 35 changes in April 2021 receive royal assent 

In the light of Covid-19, the government announced on 18th March 2020 that it had taken the decision to delay the extension to the private sector of the off-payroll working rules (sometimes referred to as IR35 changes) until 6th April 2021.

Despite considerable opposition, amendments to the Finance Bill 2020 were defeated and the Bill, which contains the relevant provisions in Schedule 1, received royal assent on 22nd July 2020 and became law as the Finance Act 2020.

Schedule I amends Chapter 8 of  The Income Tax (Earnings and Pensions) Act 2003 where the original provisions applying to workers under arrangements made by intermediaries (such as personal service companies) are found. The provisions (commonly known as the off-payroll rules or IR35 rules) are designed to ensure that people performing similar roles pay similar amounts of tax and national insurance, whether or not they are employed directly or through their own limited company. Chapter 8 provides that the  worker’s earnings must be taxed as employee earnings (i.e.  PAYE and National Insurance apply) where the circumstances are such that ‘if the services were provided under a contract directly between the client and the worker, the worker would be regarded for income tax purposes as an employee of the client ‘

When the off-payroll rules were first introduced, liability for the assessment of the circumstances rested with the personal service company (‘PSC’) but, from 2017 the responsibility and liability for judging whether the rules apply to engagements in the public sector shifted to the public sector body, agency or third party paying them. As a result of the provisions in Schedule 1 of the Finance Act 2020, from April 2021 responsibility for deciding if the off-payroll rules apply and accounting for the necessary taxes will also shift from an individual worker’s PSC to the party paying them in the private sector. 

For employers and contractors wishing to continue to prepare ahead of 2021 and looking for the latest information, the HMRC Employment Status Manual is a very useful reference

https://www.legislation.gov.uk/ukpga/2020/14/schedule/1/enacted

https://www.gov.uk/hmrc-internal-manuals/employment-status-manual

Funding for not-for-profit organisations to provide free legal support  for litigants in person

In a joint initiative with the Access to Justice Foundation, the Ministry of Justice has announced a £3.1 million grant to enhance free legal advice and support. The aim is to help  litigants in person better understand legal processes and their rights within them, and also to provide  practical support during proceedings

.https://www.gov.uk/government/news/more-support-for-those-representing-themselves-in-court

Changes to the treatment of termination payments and post-employment notice pay for income tax

The government has published a policy paper and draft legislation on changes to the treatment of termination payments and post-employment notice pay (PENP) for income tax. The legislation introduced by this measure will amend the rules on post-employment notice pay and add provisions relating to post-employment notice pay in Income Tax (Earnings and Pensions) Act 2003.

By way of background, changes were made to the taxation of termination payments in the Finance (No.2) Act 2017, with effect from 6 April 2018. This included the introduction of PENP to ensure that all contractual, customary and non-contractual payments in lieu of notice are subject to income tax and National Insurance Contributions as earnings consistently.

The proposed clause is intended to improve the fairness and clarity of the PENP legislation by removing two known inconsistencies in the tax treatment of PENP.

https://www.gov.uk/government/publications/changes-to-the-treatment-of-termination-payments-and-post-employment-notice-pay-for-income-tax

COVID-19 materials

For a comprehensive round up of information and how rules and regs have developed since March, please see Emplaw Monthly - End of March and  Emplaw Monthly- End of April and Emplaw Monthly - End of May and Emplaw Monthly - End of June and Emplaw Monthly - End of July

General Updates

Information on local restrictions

Following The Health Protection (Coronavirus, Restrictions)(England)(No.3) Regulations 2020 which we reported on last month and  which came into force on18 July, and which give Local Authorities powers relating to the control and prevention of coronavirus, Gov.uk now provides up to date information on local measures in place.

https://www.gov.uk/government/collections/local-restrictions-areas-with-an-outbreak-of-coronavirus-covid-19

Coronavirus outbreak FAQs: what you can and can't do

Keeping track of the current restrictions is becoming more challenging and this set of FAQs, updated 13th August, provides a useful check. It applies to England only but and signposts information for the nations.

https://www.gov.uk/government/publications/coronavirus-outbreak-faqs-what-you-can-and-cant-do/coronavirus-outbreak-faqs-what-you-can-and-cant-do

Track and Trace - Unions warn of failure

Workers told to self isolate by the track and trace service can be entitled to statutory sick pay but many low-paid workers either do not qualify for the statutory sick pay of £95.85 a week or cannot afford to live on the allowance. Unions are urging employers to pay workers their full pay where possible and urging the government to ensure that every worker gets financial support.

https://www.theguardian.com/politics/2020/aug/10/nhs-test-and-trace-will-fail-unless-government-pays-wages-say-unions.

Self-isolating after returning to the UK

BEIS has published guidance for employees and employers on self-isolating for 14 days after they return to the UK (unless they are returning from a country with a quarantine exemption).

https://www.gov.uk/guidance/self-isolating-after-returning-to-the-uk-your-employment-rights

Advice for UK visa applicants and temporary UK residents

The government has published advice for ‘visa customers’ and applicants in the UK, visa customers outside the UK and British nationals overseas who need to apply for a passport affected by travel restrictions associated with COVID-19.

https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-applicants-and-temporary-uk-residents

The Health Protection (Coronavirus, Restrictions)(No.2)(England)(Amendment)(No.3) Regulations 2020

These Regulations amend the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 to permit the following to open: casinos, indoor skating rinks, indoor play areas, bowling alleys and conference centres and exhibition halls.

https://www.legislation.gov.uk/uksi/2020/863/contents/made

The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place)(England)(Amendment) Regulations 2020

These Regulations amend the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 to add further relevant places where members of the public are required to wear face coverings. It also removes some existing exemptions from the definition of “shop” such that premises that were exempt are now included in the definition of relevant place. This has the effect of requiring members of the public to wear face coverings in wider range of places than previously provided for in England to protect against the risks to public health arising from coronavirus, except in certain limited cases.

https://www.legislation.gov.uk/uksi/2020/839/contents/made

Courts

HM Courts and Tribunals Service provides a weekly summary of the operational position during the coronavirus pandemic and GOV.UK provides information on  Nightingale Courts 

https://www.gov.uk/guidance/hmcts-weekly-operational-summary-on-courts-and-tribunals-during-coronavirus-covid-19-outbreak

https://www.gov.uk/guidance/courts-and-tribunals-additional-capacity-during-coronavirus-outbreak-nightingale-courts

Update for Scotland

The Health Protection (Coronavirus)(Restrictions)(Scotland) Amendment (No10) Regulations 2020

These Regulations amend the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 (“the principal regulations”).

The new regulation 4 requires a person responsible for a place of worship, for carrying on a business or providing a service to take all measures, where reasonably practicable, to ensure that the required distance is maintained between persons on the premises; that persons are allowed into premises in sufficiently small numbers to allow the required distance to be maintained; and, that the required distance is maintained between people waiting to enter the premises. It also requires any other measures, where reasonably practicable, to be taken, for example to limit close face to face interaction and maintain hygiene.

The new regulation 4A provides that the Scottish Ministers may issue guidance about the practical application of the requirements imposed by new regulation 4(1)(b) and that any such guidance issued by Scottish Ministers may incorporate documents published by another person, for example a trade association, a body representing members of an industry or a trade union. Regulation 4A also places a new duty on the persons responsible for a place of worship, carrying on a business or providing a service to have regard to guidance issued by the Scottish Ministers relating to its premises, business or service. It is not, however, an offence to fail to have regard to guidance as regulation 4A is excluded from the scope of regulation 8(1) of the principal regulations.

Regulation 2(3) of these Regulations substitutes a new regulation 6B into the principal regulations which provides that a face covering must be worn in certain indoor premises. A list of premises where a face covering is required is provided and specific exemptions are listed. It is an offence not to comply with the requirements of regulation 6B unless an exemption applies or there is a reasonable excuse for the failure to wear the face covering. A non-exhaustive list of reasonable excuses is provided in regulation 8(5A) of the principal regulations.

Regulation 2(5) of these Regulations amends the definition of face coverings in the principal regulations, with the effect that wearing a face shield no longer satisfies the requirement to wear a face covering in certain places.

https://www.legislation.gov.uk/ssi/2020/236/pdfs/ssi_20200236_en.pdf

Update for Wales

The Health Protection (Coronavirus Restrictions)(No.2)(Wales)(Amendment)(No.2) Regulations 2020

These Regulations amend the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) Regulations 2020.

The amendments made by regulation 2 consist of provision—

(a) permitting underground visitor attractions to open, but the persons responsible for the premises will be required to take all reasonable measures to minimise the risk of exposure to coronavirus on the premises;

(b) removing the requirement to close holiday accommodation that is not self-contained (but again the requirement to take all reasonable measures to minimise the risk of exposure to coronavirus on the premises will apply);

(c) removing the requirement imposed on individuals to work from home where reasonably practicable;

(d) clarifying that a reasonable excuse for gathering with other persons may include accessing any public services and childcare, as well as taking part in supervised children’s recreation.

The amendments made by regulation 3 consist of provision—

(a) permitting the opening of crematoriums (in all circumstances), indoor cinemas, nail and beauty salons, massage parlours, establishments providing tanning services, body piercings, tattooing, electrolysis or acupuncture, amusement arcades, museums, galleries and archive services (but as above, the requirement to take all reasonable measures to minimise the risk of exposure to coronavirus on the premises will apply);

(b) requiring passengers travelling on public transport services to wear a face covering, subject to exceptions which are listed, and making provision for the enforcement of this duty;

(c) relaxing the restriction on gatherings to allow a wider range of activities relating to the sale and letting of residential property, such as viewings of occupied properties.

https://www.legislation.gov.uk/wsi/2020/803/contents/made

The Health Protection (Coronavirus Restrictions)(No.2)(Wales)(Amendment)(No.3) Regulations 2020

These Regulations amend the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) Regulations 2020. The amendments—

(a)  permit restaurants, cafés, bars and public houses to open indoors (although measures must be taken to minimise the risk of exposure to coronavirus on the premises);

(b)  permit bingo halls, bowling alleys and auction houses to open (but again measures must be taken to minimise the risk of exposure to coronavirus);

(c)  relax the restriction on gatherings, so that any outdoor gathering of no more than 30 people is permitted (whether or not it involves organised outdoor activities).

https://gov.wales/the-health-protection-coronavirus-restrictions-no-2-wales-amendment-no-3-regulations-2020

Wales: updated guidance on working from home

The Coronavirus Regulations initially required a number of businesses and other premises and services to close.  Incrementally, as a result of regular review of the Regulations, an increasing number of these have been allowed to open again. This is often subject to statutory requirements, supported by guidance from the Welsh Government and other bodies, including professional and sectoral bodies. The Welsh government here sets out updated guidance.

https://gov.wales/taking-all-reasonable-measures-minimise-risk-exposure-coronavirus-workplaces-and-premises-open

https://gov.wales/coronavirus-regulations-guidance

Covid and the workplace - staff at work, returning to work and  absent from work

For more  information on work and return to work issues, including links to Acas and HSE guidance please see  Emplaw Monthly- End of April  and   Emplaw Monthly - End of May and Emplaw Monthly - End of June and Emplaw Monthly - End of June

Stay at home guidance extended along with SSP

Public Health England has published guidance for households with possible or confirmed COVID-19 infection. The period of self-isolation after noticing symptoms is now at least 10 days (increased from 7 days) from when symptoms started. SSP regulations have been amended to reflect the increase. 

To correspond with the change, The Statutory Sick Pay (General) (Coronavirus Amendment) (No. 5) Regulations 2020 (SI 2020/829) came into force on 5 August 2020 to provide that a person is entitled to statutory sick pay for the full period for which they are required to self-isolate and for the period a person is required to stay at home after testing positive for coronavirus..

https://www.gov.uk/government/publications/covid-19-stay-at-home-guidance/stay-at-home-guidance-for-households-with-possible-coronavirus-covid-19-infection

https://www.legislation.gov.uk/uksi/2020/829/regulation/2/made

Support service to help apprentices get jobs

The government has launched a new support service to help apprentices who have lost their jobs due to COVID-19 to find new job opportunities.

https://www.gov.uk/government/news/apprentices-to-get-jobs-boost

Updated ‘Working during coronavirus’ guidance

The government has updated its guidance on working safely during COVID-19 to reflect the pause in shielding from 1 August 2020, Meanwhile the Health Secretary, Matt Hancock, has confirmed that the government is "not considering" making the wearing of face masks mandatory in the workplace, 

https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19/updates

https://www.bbc.co.uk/news/uk-53833204

Access to Work scheme further extended 

Additonal support for disabled employees including financial support  for taxi fares if public transport is not a safe option.

https://www.gov.uk/government/news/new-help-on-offer-for-disabled-people-working-from-home-during-the-pandemic

CJRS

 For more details on the current scheme, please see the report in June’s  Emplaw monthly

Job Retention Bonus policy paper

The government has published a policy paper on the job retention bonus which is intended to provide additional support to employers who keep on their furloughed staff in meaningful employment after the end of the government’s Coronavirus Job Retention Scheme on 31 October 2020.

Under the scheme, the bonus is a one-off payment to employers of £1,000 for every employee who employers previously claimed for under the scheme and who remains continuously employed through to 31 January 2021.

Eligible employees must earn at least £520 a month on average between 1 November 2020 and 31 January 2021. Employers will be able to claim the bonus after they have filed PAYE for January and payments will be made to employers from February 2021.

https://www.gov.uk/government/publications/job-retention-bonus/job-retention-bonus

https://www.gov.uk/government/news/further-details-of-the-job-retention-bonus-announced

COVID-19 – Calculation of a week’s pay

The Employment Rights Act 1996(Coronavirus, Calculation of a Week’s Pay) Regulations 2020 came into force on 31 July 2020. The regulations ensure that various statutory entitlements based on a week’s pay and connected with termination of employment are not reduced as a result of an employee being furloughed under the Coronavirus Job Retention Scheme (CJRS). The entitlements are:

  • redundancy pay;
  • notice pay;
  • compensation for unfair dismissal;
  • a payment resulting from a failure to provide a written statement of reasons for dismissal;
  • a payment resulting from a failure to comply with an order for reinstatement or re-engagement; and
  • remuneration for time off to look for employment or arrange training.

The regulations also set out how a week’s pay is to be calculated for the purpose of deciding whether an employee is taken to be on short-time for statutory purposes.

Substancially similar provisions apply in Northern Ireland

https://www.legisltation.gov.uk/uksi/2020/814/contents/made

https://www.legislation.gov.uk/nisr/2020/178/pdfs/nisr_20200178_en.pdf

CASES: 

Commissioners for HMRC v Kickabout Productions Limited [2020] UKUT 0216

IR35 applied to radio presenter

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Akay v Newcastle University [2020] EWHC 1669

Re-litigating personal injury claims was abuse of process

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ISS Facility Services v Govaerts (Case C-344/18) ECJ

Transfer of undertaking when only two out of three parts of employee’s work is transferred

Recital 3 of the Acquired Rights Directive 2001/23 states:

‘It is necessary to provide for the protection of employees in the event of a change of employer, in particular, to ensure that their rights are safeguarded.’

Article 1(1) provides:

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Case Summary Tag: 

Safeway Ltd v Newton & Ors [2020] EWCA Civ 869

Closing of the ‘Barber window’

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Case Summary Tag: 

Gallacher v Scotrail Limited UKEAT/0027/19

Manager fairly dismissed without proper procedure

Ms Gallacher was dismissed without any procedure being followed as a result of a breakdown in relations between her and her manager. Following the deterioration at a critical time for the company, she was dismissed at an appraisal meeting with no procedure or pre-warning and no right of appeal. The ET found that the dismissal was not unfair and also that Scotrail did not know (and could not reasonably have been expected to have known) of her disability. Ms Gallacher appealed.

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Case Summary Tag: 

O’Eachtiarna and others v City Sprint (UK) Ltd ET 2301176/2018

ET rules that cycle couriers are workers

In this case, cycle couriers for City Sprint claimed they were workers and had not been paid the holiday pay to which they were entitled under the Working Time Regulations 1998.

Regulation 2 of the 1998  Regulations provides as follows:

‘“worker” means an individual who has entered into or works under (or, where the employment has ceased, worked under) -

(a) a contract of employment; or

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