Emplaw Monthly - End of November 2020
NEW FROM OUR AUTHORS
Health and Safety protections under EU Health and Safety Directives apply to ‘limb b’ workers
A blog from Cloisters' barrister Caroline Musgrave considering the judgment in R (Independent Workers Union of Great Britain) v Secretary of State for Work and Pensions and its importance for gig workers during the COVID-19 pandemic.
Read here
Furloughing employees - FAQs for employers on the coronavirus job retention scheme
This article from Emplaw authors, Lewis SIkin answers the key questions on the extended CJRS from this month.
Read here
FOCUS ON CONTENT
Health & Safety At Work
We have a series of straight forward cards on Health & Safety At Work, drafted by Cloisters' barristers and covering the underlying law and specific regulations
Click here for full list
NEWS
EMPLOYER/EMPLOYEE ADVISOR NEED TO KNOW
Immigration Rules: government statement of changes
The government has published changes to the Immigration Rules. These amendments deliver the Future Points-Based Immigration System and represent a further step in realising the Home Office commitment to simplifying the rules, implementing the recommendations of the Law Commission.
The main changes to the immigration system, including the replacement of Tier 2 (General) route with the Skilled Worker route actually come into effect from 1st Dcember 2020 and mean that :Employers who do not already have a sponsor licence will need one in order to employ a foreign national and will usually need to pay the Immigration Skills Charge (ISC).
For more information, please see Emplaw Law card
https://www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-hc-813-22-october-2020 (which include a shorter, explanatory memorandum)
Information for employers on sponsorship is found at https://www.gov.uk/government/collections/sponsorship-information-for-employers-and-educators
Living wage increased
The Living Wage Foundation has announced that the real Living Wage will increase by 10p to £10.85 for London and by 20p to £9.50 for the rest of the UK.
The Living Wage Foundation is a body set up to accredit employers and promote the Living Wage (as distinct from and greater than the statutory National Minimum Wage levels).
For more information about the Living Wage and the NMW please see Emplaw Law Card National Minimum Wage (NMW): Key Card
IR35 Updates
The changes to the off payroll rules, due to come into effect in April 2020, remain on track with the publication of The Social Security Contributions (Intermediaries) (Miscellaneous Amendments) Regulations 2020 which include provision for payment of associated NICs from 6th April 2021 and complement the Regulations made in October dealing the recovery of PAYE debts from 'relevant persons' .
Meanwhile the HMRC employment status manual has recently been updated to clarify that the new rules will only apply where the worker’s intermediary satisfies specific conditions and usefully makes it clear they will not apply ' where an individual performs services for a client and that individual is already engaged under a contract of employment and their earnings are subject to PAYE by another party' ( For example, an agency worker employed by an agency that operates PAYE)
https://www.gov.uk/hmrc-internal-manuals/employment-status-manual/esm10003
https://www.legislation.gov.uk/uksi/2020/1220/contents/made
ICO guidance on criminal offence data
The Information Commissioner’s Office has published guidance on criminal offence data. It is aimed at data protection officers and those with specific data protection responsibilities in larger organisations.
FCA bans three individuals from working in the financial services industry for non-financial misconduct
On 5 November 2020, the Financial Conduct Authority (“FCA”) announced that it had prohibited three individuals from working in the financial services industry following findings that they were not fit and proper given their convictions for serious non-financial indictable offences while working as approved persons.
In the accompanying press release, Mark Steward, the FCA’s Executive Director of Enforcement and Market Oversight, stated, “The FCA expects high standards of character, probity and fitness and properness from those who operate in the financial services industry and will take action to ensure these standards are maintained”.
The prohibitions are significant for financial institutions as they illustrate that the FCA means business with its repeated focus on non-financial misconduct. It is not just honesty, competence and capability in the carrying out of their duties that matters; behavioural concerns also go to fitness and propriety, whether the conduct took place inside or outside the workplace. In its 2019/20 Business Plan, the FCA stated that it would be “holding individuals to account under SM&CR when things go wrong” and these prohibitions show its determination to take action against individuals when there has been misconduct.
REPORTS AND CONSULTATIONS
Joint committee on human rights inquiry into freedom of expression
Freedom of expression is an essential foundation of democratic society, guaranteed by the common law and by Article 10 of the European Convention on Human Rights.
The Joint Committee on Human Rights will investigate this issue. The committee’s inquiry will focus on the following questions:
- Does hate speech law need to be updated or clarified as shifting social attitudes lead some to consider commonly held views hateful?
- Does current police guidance and practice on hate speech law help promote freedom of expression?
- Is there a need to review the wording and application of Public Space Protection Order (PSPO) legislation?
- What obligations does an employee have to their employer when expressing views on social media, and to what extent can, and should, employers respond to what their employees say on these platforms?
- Is greater clarity required to ensure the law is understood and fair?
- How has the situation changed in universities in the two years since the Committee’s report on the issue?
- Does everyone have equal protection of their right to freedom of expression?
Commission on race and ethnic disparities: call for evidence
The Commission on race and ethnic disparities has published a call for evidence on ethnic disparities and inequality in the UK.
The Commission will be focusing on four areas:
- education
- employment and enterprise
- health
- crime and policing
It is looking at outcomes across the whole population.
COVID-19
General
Government guidance: enabling safe and effective volunteering during coronavirus
This guidance aims to help organisations and groups understand how to safely and effectively involve volunteers during the pandemic.
https://www.gov.uk/guidance/enabling-safe-and-effective-volunteering-during-coronavirus-covid-19
Updated shielding guidance
The government has issued updated shielding guidance in light of the second lockdown that commenced on 5 November 2020.
CJRS
Exit Job Support Scheme and enter Coronavirus Job Retention Scheme extended
Treasury Direction extending CJRS until 31 January 2021
The government has extended the CJRS until 31 March 2021 (with a review of employer contribution levels in January) and issued a further Treasury Direction extending the scheme to 31st January. A further Treasury direction will be made covering the CJRS in February and March 2021. Accordingly, the government has also updated its guidance (links below) associated with the scheme.
Points to note include
- Employers can claim 80% of employees’ salaries, up to £2,500. Employers are required to pay employers’ National Insurance and pension contributions (mirroring the position under the original scheme as it was in August).
- Employers need to confirm in writing to employees’ where they are extending furlough or putting new employees on furlough.
- Furlough agreements can last any amount of time, but the period claimed for must normally be for a minimum 7 consecutive calendar days.
- Claims may not be made for any day that an employee is serving notice between 1 December 2020 and 31 January 2021 (both statutory and contractual notice periods).This is different to the previous CJRS terms.
- From December 2020, HMRC will publish the names of companies and Limited Liability Partnerships who have made claims under the scheme for the month of December onwards and information about the amount claimed..
https://www.gov.uk/guidance/check-if-you-could-be-covered-by-the-coronavirus-job-retention-scheme
The Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay (Amendment) Regulations 2020
This instrument amends regulations 2 and 3 of the Employment Rights Act 1996
(Coronavirus, Calculation of a Week’s Pay) Regulations 2020 (“the principal regulations”). It makes amendments to the principal regulations consequent on the extension of the Coronavirus Job Retention Scheme (CJRS) until 31 March 2021. The principal regulations assumed, when made on 29 July 2020, that the CJRS would end on 31 October 2020 as was then envisaged.
The instrument ensures that, with effect from commencement on 18 November 2020 and consistently with the principal regulations as originally made, 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 instrument also extends the effect of the principal regulations regarding how a week’s pay is to be calculated for the purpose of deciding whether an employee is to be taken on short-time for statutory purposes.
https://www.legislation.gov.uk/uksi/2020/1296/introduction/made
Covid and the workplace - staff at work, returning to work and absent from work
The Income Tax (Exemption of Minor Benefits) (Coronavirus) Regulations 2020
These Regulations which come into force on 8 December 2020 provide for an exemption from income tax charged under Chapter 10 of Part 3 (taxable benefits: residual liability to charge) of the Income Tax (Earnings and Pensions) Act 2003 when employees are provided with coronavirus tests of the type which detect a viral antigen.
These Regulations will take effect for coronavirus tests provided on or after the date the Regulations come into force until the end of the tax year 2020-21.
https://www.legislation.gov.uk/uksi/2020/1293/made
Protect: Whistleblowing during Covid-19
Protect has published a report about whistleblowing during Covid-19.
Particularly unsettling is the high percentage of whistleblowers - 41% overall - who raised Covid-19 related concerns to their employer and were ignored. Protect is seeing the same failings during this global crisis when compared to 2019 where the figure stood at 39% across the whole year. Yet many of the concerns raised during the pandemic include risks to public safety – with 43% saying they were ignored.
https://protect-advice.org.uk/the-best-warning-system-whistleblowing-during-covid-19/
Palmeri & Ors v Charles Stanley & Co Ltd [2020] EWHC 2934
Contract: employer could rely on fundamental breach by a self-employed worker to thwart the worker’s claim for substantial damages for breach by the employer
Charles Stanley & Co Ltd, a financial services and investment management firm, contracted with Mr Palmeri, a self-employed associate stockbroker of the firm for twenty years.
Z & Anor, R (on the application of) v Hackney London Borough Council & Anor (Rev 1) [2020] UKSC 40
Supreme court holds it was proportionate for charity to offer housing to specific group without proportionality analysis
Heskett v Secretary of State for Justice [2020] EWCA Civ 1487
Justification for pay freeze which caused indirect age discrimination.
Section 39 (2) (d) of the Equality Act 2010 provides that an employer must not discriminate against an employee by subjecting him or her to any detriment.
Indirect discrimination is defined in section 19. Subsections (10 and (2) read:
"(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
Murphy v Revenue & Customs [2020] UKFTT 461 (TC)
Legal fees and insurance premium taxable as employment income.
Pathan, R (on the application of) v Secretary of State for the Home Department [2020] UKSC 41
Secretary of State should have informed applicant of withdrawal of sponsor licence.