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Emplaw Monthly - End of December 2020

NEW FROM OUR AUTHORS

Sickness absence and sick pay during the Covid-19 pandemic - FAQs for employers

This article, from Emplaw authors Lewis Silkin, answers some of the most frequently asked questions about sickness absence and sick pay during the ongoing Covid-19 pandemic, including the rules on statutory sick pay and the position of people who are self-isolating, “shielding” or otherwise vulnerable - updated 9th December 2020.

Read here

On Demand Webinar: Brexit, IR35, and recruiting in a pandemic

A webinar from Emplaw authors Gowling WLG which covers  the new IR35 legislation coming into effect next year, the effects of Brexit and how best to address its impact as well as recruitment during a pandemic.

Click here

 

NEWS

EMPLOYER/EMPLOYEE ADVISOR NEED TO KNOW

Benefit and pension rates 2021 to 2022

The Department for Work and Pensions has published the rates for benefits and pensions 2021-2022.

Maternity Allowance Rates 2020 to 2021 £ Rates 2021 to 2022 £
Standard Rate 151.20 151.97
Maternity Allowance threshold 30.00 30.00
Maternity Allowance Rates 2020 to 2021 £ Rates 2021 to 2022 £
Earnings threshold  120.00 TBC
Standard rate 151.20 151.97
Statutory Paternity Pay Rates 2020 to 2021 £ Rates 2021 to 2022 £
Earnings threshold  120.00 TBC
Standard rate 151.20 151.97
Statutory Shared Parental Pay Rates 2020 to 2021 £ Rates 2021 to 2022 £
Earnings threshold 120.00 TBC
Standard rate 151.20 151.97
Statutory Sick Pay Rates 2020 to 2021 £  Rates 2021 to 2022 £
Earnings threshold  120.00  TBC
Standard rate 95.85 96.35
     
     

https://www.gov.uk/government/publications/benefit-and-pension-rates-2021-to-2022/benefit-and-pension-rates-2021-to-2022

National minimum wage and national living wage rates

The government has accepted the Low Pay Commission’s recommendations for the NMW and NLW.

The increases are:

Rate from April 2020 

Rate from April 2021

Increase

National Living Wage

£8.72

£8.91

2.2%

21-22 Year Old Rate

£8.20

£8.36

2.0%

18-20 Year Old Rate

£6.45

£6.56

1.7%

16-17 Year Old Rate

£4.55

£4.62

1.5%

Apprentice Rate

£4.15

£4.30

3.6%

Accommodation Offset

£8.20

£8.36

2.0%

https://www.gov.uk/government/news/national-living-wage-increase-to-protect-workers-living-standards

 

DBS updates 

Is getting useful references a challenge?

The Disclosure and Barring Service has published details of a project to help social care and health employers share effective references and conduct information. The aim is to develop resources which will provide social care employers with the guidance, knowledge and tools to allow them to share accurate and relevant information about individuals with prospective employers – and with DBS, when appropriate.

https://www.gov.uk/government/news/is-getting-useful-references-a-challenge

New law and guidance including removing requirement for automatic disclosure of youth cautions, reprimands, and warnings

Background: The Rehabilitation of Offenders Act 1974 (‘the Act’) affords offenders protection from having to disclose their convictions and cautions once those convictions and cautions have become spent under the Act i.e. once the offender has become rehabilitated.

The Act provides the Secretary of State with the power to exempt offenders from those protections for certain offices, employment, work and also proceedings. The exceptions are set out in the Exceptions Order.

Where the Exceptions Order is engaged and a person has more than one conviction, all convictions which would otherwise be spent under the Act are not subject to the protection of the Act and are therefore required to be disclosed by a person if they are asked about it. This is regardless of the seriousness of the offence, the disposal received or the time that has passed. This is known as the “multiple conviction rule”. Additionally, where the Exceptions Order is engaged, any youth caution which would otherwise be spent under the Act is not protected (and would be required to be disclosed if asked about it) if it was given for certain serious offences or received within two years of the disclosure request.

New order: and guidance: The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) England and Wales) Order 2020 has been made so that multiple convictions and youth cautions will no longer have to be disclosed. Meanwhile the DBS has issued guidance New filtering rules for DBS certificates (from 28 November 2020 onwards).

The Order follows the  Supreme Court judgment in R(P) v Secretary of State for the Home Department and Others [2019] UKSC 3 where the Court held, in judgment given on 31 January 2019, that the multiple conviction rule and the disclosure of youth warnings and reprimands in the Police Act 1997 and the Exceptions Order are incompatible with Article 8 of the European Convention on Human Rights (the right to a private life). In respect of the multiple conviction rule, the Court accepted the legitimate aim that a multiplicity of convictions may indicate a criminal propensity likely to be relevant to the suitability of an otherwise rehabilitated person for a sensitive occupation. However, as that rule applied irrespective of the nature of the offence, of their similarity, of the number of occasions involved or the intervals of time separating them, it could not be regarded as a necessary and proportionate way of achieving that aim. In respect of youth warnings and reprimands administered to young offenders under sections 65 and 66 of the Crime and Disorder Act 1998 (replaced since 2013 by youth cautions under section 66ZA of that Act), the Court held that such disposals are an alternative to prosecution given to a young offender whose moral bearing are still in the course of formation. The Court stated further that as such disposals are designed to avoid any deleterious effect on subsequent life, its disclosure to a potential employer would be inconsistent with that purpose.

This Order responds to that judgment by amending the provisions of the Exceptions Order concerning protected convictions and cautions such that multiple convictions and youth cautions will no longer have to be disclosed when a person is asked about them, unless required to be disclosed by any other provisions of the Exceptions Order.

https://www.gov.uk/government/publications/filtering-rules-for-criminal-record-check-certificates/new-filtering-rules-for-dbs-certificates-from-28-november-2020-onwards

https://www.legislation.gov.uk/uksi/2020/1373/made

Extension of visas for frontline health workers

The government has promised to extend visas for front line professionals and their family dependants for a year. This follows an announcement earlier in the year offering free visa extensions for health professionals whose visas were due to expire between 31 March 2020 and 1 October 2020. This announcement will extend that offer from 1 October 2020 until 31 March 2021.

https://www.gov.uk/government/news/thousands-more-health-workers-to-benefit-from-visa-extensions

REPORTS AND CONSULTATIONS

Government review of the Human Rights Act

The government has launched an independent review of the Human Rights Act. A panel of experts will determine whether there is a need to reform the Human Rights Act. The review is expected to report on its recommendations in Summer 2021.

Specifically, the review will consider:

  • The relationship between the domestic courts and the European Court of Human Rights (ECtHR). This includes how the duty to ‘take into account’ of ECtHR case law has been applied in practice, and whether dialogue between our domestic courts and the ECtHR works effectively and if there is room for improvement.
  • The impact of the HRA on the relationship between the judiciary, executive and Parliament, and whether domestic courts are being unduly drawn into areas of policy.
  • The implications of the way in which the Human Rights Act applies outside the territory of the UK and whether there is a case for change.

https://www.gov.uk/government/news/government-launches-independent-review-of-the-human-rights-act

Government consultation on extending the ban on exclusivity clauses in contracts of employment

The government is consulting on a proposal to extend the ban on exclusivity clauses to contracts where the workers’ guaranteed weekly income is less than the lower earnings limit, currently £120 a week. The government states that the intention is to allow low-income workers who are not able to secure the number of hours they would like from their current employer to seek additional work elsewhere.

The consultation closes on 26 February 2021.

https://www.gov.uk/government/consultations/measures-to-extend-the-ban-on-exclusivity-clauses-in-contracts-of-employment

Government consultation on measures to reform post-termination non-compete clauses in contracts of employment

The government is consulting on options to reform post-termination non-compete clauses in contracts of employment. The stated aim is to encourage

innovation, and increase competition by maximising opportunities for individuals to start new businesses, find new work and apply their skills to drive the economic recovery.

The consultation seeks views on:

  • proposals to make non-compete clauses enforceable only when the employer provides compensation during the term of the clause, and whether this could be complemented by additional transparency measures and statutory limits on the length of non-compete clauses
  • an alternative proposal to make post-termination, non-compete clauses in contracts of employment unenforceable

This consultation closes at 11:45pm on 26 February 2021.

https://www.gov.uk/government/consultations/measures-to-reform-post-termination-non-compete-clauses-in-contracts-of-employment

 

LEGISLATION AND LITIGATION

Acas Early Conciliation – now a standard six-week process

The Rules of Procedure for Acas Early Conciliation changed on 1 December 2020.

There is now a standard six-week Acas early conciliation process (rather than a one-month process, with a possible extension of a further two weeks).  The extension is  aimed at increasing the  number of cases achieving a pre-claim resolution. It will also be possible for Acas conciliators to correct errors in the early conciliation form at any time during the early conciliation period, a change that  make any application for a claim to be struck out on the basis of errors in the EC form much harder to achieve.

The Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020

 

Brexit: preparing for the end of the transition period  - Law Society guidance and webinars

The Law Society has published extensive guidance and is holding webinars to support individual solicitors and firms. Guidance includes county specific guides and guidance on choice of court agreements and the enforcement of foreign judgments in England and Wales.

https://www.lawsociety.org.uk/en/topics/brexit/preparing-for-the-end-of-the-transition-period

 

COVID-19 materials

General

The government's Winter Plan for managing COVID-19 through the winter.

https://www.gov.uk/government/publications/covid-19-winter-plan

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

The clinically extremely vulnerable

The guidance on shielding and protecting people defined on medical grounds as extremely vulnerable has been updated from 2nd December so that, if the person cannot work from home, they can still go to work in all tiers, although everyone is currently still advised to work from home where possible. The guidance signposts that Access to Work can will provide support for the disability-related extra costs of working from home or in the workplace that are beyond standard reasonable adjustments an employer must provide. It points out that  furlough may be available and advises employees to talk to their employer about the possibility.

guidance on shielding and protecting people defined on medical grounds as extremely vulnerable

Access to Work

DWP guidance on disabled people and coronavirus

The Department for Work & Pensions has added guidance for line managers on employing people with a disability or health condition during coronavirus.

https://www.gov.uk/government/publications/disability-confident-and-cipd-guide-for-line-managers-on-employing-people-with-a-disability-or-health-condition#history

Updated guidance on working safely

The guidance for how various workplaces can be made COVID-19 secure has been updated from 14th December 2020. The most recent update includes the self-isolation guidance for contacts of individuals who test positive for COVID-19 which is now 10 days instead of 14. Other updates this month largely reflect the  new tiered restrictions in England  but interestingly most of the sector guidance includes a new "priority action" for employers to "consider the mental health and wellbeing aspects of COVID-19 for yourself and others." The guides emphasize the need for awareness and focus on the importance of mental health at times of uncertainty and link to the government’s guidance on the mental health and wellbeing aspects of coronavirus (COVID-19).

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

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

Employee monitoring during COVID-19

Research carried out by the TUC shows that monitoring of employees by their employers has increased since the start of the pandemic.

Frances O’Grady, general secretary of the TUC, said worker surveillance tech had “taken off” since the start of the outbreak as employers grappled with the reality of increased remote working. She said companies have invested in AI to keep tabs on their workers, set more demanding targets and automate decisions about “who to let go”.

https://www.tuc.org.uk/sites/default/files/2020-11/Technology_Managing_People_Report_2020_AW_Optimised.pdf

CJRS

There is a useful list of the various guidance on GOV.UK divided into

  • Check if you can use the scheme
  • Work out what you can claim
  • Claim and report earnings
  • Pay HMRC
  • Help and support
  • Latest news and Policy

https://www.gov.uk/government/collections/coronavirus-job-retention-scheme


 

 

CASES: 

Beckwith v Solicitors Regulation Authority [2020] EWHC 3231

Solicitor’s sexual misconduct outside the office was not professional misconduct.

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Simpson v Cantor Fitzgerald EWCA Civ [2020] 1601

Whistleblowing: Court of Appeal upholds EAT decision.

The Court of Appeal has heard the appeal in Simpson v Cantor Fitzgerald (whistleblowing). The case concerns public interest disclosure.

claims under s 47B (detriment) and s 103A (unfair dismissal) of the Employment Rights Act 1996, brought by Mr Simpson following his dismissal by the investment bank, from his position as Managing Director on the Emerging Markets Desk.

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G Cole v Elders' Voice [2020] UKEAT 0251/19

Without prejudice material ought to have been examined before a decision was made on whether the COT3 was enforceable.

This is an appeal by Ms Cole against the determination of the ET that there was no jurisdiction to hear her complaints of direct discrimination and/or harassment pursuant to the Equality Act 2010 against Elders Voice ("EV").

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Berkeley Catering Limited v Jackson UKEAT/0074/20

Redundancy situation exists whether there is a diminution in the employer’s requirement for employees to do that work: motive is irrelevant.

Berkeley appealed against an ET judgement that Ms Jackson had been unfairly dismissed. Ms Jackson had been MD of Berkeley, which was owned by Mr Patel. Over time Mr Patel started to undermine Ms Jackson and to side-line her. Eventually he stated that he was taking charge of the company as CEO and the role of MD was therefore redundant. A meeting was supposed to be scheduled to discuss alternative roles but it never took place.

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