Emplaw Monthly - End of January 2021
FOCUS ON EMPLAW CONTENT
A general note on the effect of Brexit on Emplaw content is found at Statement on impact of Brexit on Emplaw Online content. More background and what it means for the future of worker's rights is found in the law card The European Union (Withdrawal Agreement) Act and the legislative history and impact of Brexit (full content for subscribers only).
NEW FROM OUR AUTHORS
Collective redundancy consultation – do you need to look back before moving forward?
A useful article from Emplaw authors Lewis Silkin which examines a ruling from the European Court of Justice late last year, and suggests that employers should look at a “rolling” 90-day period when ascertaining whether collective redundancy consultation is required. While this has potentially significant implications, the end of the Brexit transition period may limit its fallout.
Podcast: Pensions In 2021 – Key Trends And Developments
Emplaw author Ian Chapman-Curry from Gowling WLG focuses on the key trends and developments that will dominate the world of pensions in 2021.
Furloughing employees - FAQs for employers on the coronavirus job retention scheme
With furlough back in focus, this updated article from Emplaw authors, Lewis Silkin answers the key questions on the CJRS.
EMPLOYER/EMPLOYEE ADVISOR NEED TO KNOW
Brexit – EU/UK Trade and Cooperation Agreement
The Trade and Cooperation Agreement was signed between the EU and UK on 24 December. Part two, Title XI, Chapter 6 relates to employment law and sets out the commitment not to weaken or reduce labour and social standards.
Further background, including more detail on the Trade and Cooperation Agreement and the impact of Brexit on worker’s rights is found in the law card The European Union (Withdrawal Agreement) Act and the legislative history and impact of Brexit (full content for subscribers only).
Matters to consider when using algorithms for employment decisions
The ICO has published a useful blog on Six Things to Consider when using algorithms for employment decisions which acknowledges that there is a significant risk that algorithms can exacerbate issues of fairness and inequality.
Pay Gap Reporting
As the ‘snapshot date’ (generally 31st March for public authority employers and 5th April for private and voluntary sector employers) approaches, the government has updated its guidance for employers on gender pay gap reporting requirements, the data they must gather, how to make the calculations and adding a supporting narrative.
Employers who have a headcount of 250 or more on their ‘snapshot date’ must comply with the regulations on gender pay gap reporting and must report and publish within 12 months of the snapshot date.
Workplace support for victims of domestic abuse- BEIS report
Drawing upon the analysis of responses to the BEIS call for evidence which ran from June to September 2020, BEIS has issued a report on improving workplace support for domestic abuse victims, including raising awareness and sharing best practice among employers.
High Pay Centre blog on median FTSE 100 CEO pay
The thinktank High Pay Centre research suggests that the median FTSE 100 CEOs earnings for 2021 surpassed the median annual wage for a full-time worker in the UK by around 5:30pm on Wednesday 6 January. It means that CEOs have to work 34 hours of the year to surpass median annual earnings.
The calculations are based on previous analysis of CEO pay disclosures in companies annual reports, combined with government statistics showing pay levels across the UK economy.
LEGISLATION, REGULATION AND LITIGATION
The European Union (Future Relationship) Act 2020
This is the UK implementing legislation to give domestic effect to the UK's international obligations under The Trade and Co-operation Agreement (as well as the Security of Classified Information Agreement, and the Nuclear Co-operation Agreement) from the end of the transition period. The Act, which became law on 31st December 2020 includes power for the government to make statutory instruments implementing the future relationship agreements.
Further background, including more detail on the Trade and Cooperation Agreement and the legislative background to Brexit is found in the law card The European Union (Withdrawal Agreement) Act and the legislative history and impact of Brexit (full content for subscribers only).
Additional whistleblowing requirements imposed on two firms
The Prudential Regulation Authority and the Financial Conduct Authority have imposed additional whistleblowing controls on two firms pursuant to section 55L(5) section 55M(5) Financial Services and Markets Act 2000.
This follows on from the firms’ disclosure to the regulators on the outcome of an investigation into whistleblowing allegations, including potential shortcomings in the operation of its whistleblowing systems and controls.
REPORTS AND CONSULTATIONS
Report – Tackling Modern Slavery in Financial Services
This report concerns tackling modern slavery in financial services and is produced by Themis in partnership with The Independent Anti-Slavery Commissioner’s Office and TRIBE Freedom Foundation.
The survey shows that 71% of financial industry employees had never participated in any form of training with their current employer regarding modern slavery and only 21% of financial industry employees feel ‘moderately’ to ‘very’ confident identifying signs of modern slavery and human trafficking in their day-to-day work.
Some organisations are held up as best practice examples, e.g.:
Creative technologies (using technology to deliver the message) – Nationwide, Barclays, HSBC, Standard Chartered, NatWest
Partnering with national charities – Nationwide, Barclays, HSBC, Co-Op Bank, NatWest
Training for branch colleagues – Santander, Barclays, Co-Op, NatWest, HSBC
Barclays has delivered tailored modern slavery training to all UK staff in prime roles in the retail bank who may have touch points with traffickers and their victims focusing in particular on UK hotspots.
Independent Review of the Human Rights Act – call for evidence
A reminder that the Ministry of Justice’s call for evidence as part of a review of how the Human Rights Act is working in practice and whether any change is needed (as reported in last month’s Emplaw Monthly) closes on 3rd March 2021.
Report shows gender pay gap is significantly wider among older workers
An analysis of data from the Office for National Statistics by Rest Less has revealed that older women face a greater gender pay gap than their younger counterparts. The report discloses a 23% pay gap between full-time working men and women in their 50’s.
Covid and the workplace - staff at work, returning to work and absent from work
Can we required staff to be vaccinated?
ACAS guidance on Working safely during coronavirus including what to do if someone does not want to be vaccinated.
What are the rules around testing employees?
There is government guidance on testing, aimed at employers and third-party healthcare providers.
There is also specific ICO guidance on testing, again aimed primarily at employers and also general advice from the ICO for organisations on Data protection and coronavirus
Antigen testing procedures by employers are not subject to an Income Tax and National Insurance contributions
Asymptomatic testing rollout
Community testing offer has been expanded in England to test people without symptoms. Local authorities will be encouraged to target testing at people who are unable to work from home during the national lockdown.
Shielding arrangements for clinically extremely vulnerable
The governments of England and Wales have updated shielding guidance for the clinically extremely vulnerable.
The guidance from the English government was updated on 21st January and the guidance from the Welsh government was updated on 23rd December. Both now advise that if the clinically extremely vulnerable cannot work from home, then they should not attend work.
Unite publishes COVID-19 guidance for construction sites
Check which employees you can put on furlough to use the Coronavirus Job Retention Scheme
This guidance has been updated to make it clear that those who are unable to work or are working reduced hours as a result of caring responsibilities arising from COVID-19 (including caring for children who are at home following the closure of schools or childcare facilities, or caring for a vulnerable individual in the household) are eligible for furlough. The CJRS has been extended until 30th April 2021.
This guidance is part of the suite of government information on the CJRS linked below.
New Treasury Direction
The Treasury has issued a new amending Direction which includes extending the CJRS until 30th April 2021.
The government has published Guidance for British people travelling overseas during the coronavirus (COVID-19) pandemic, if they are legally permitted to travel internationally.
Travellers to the UK, including UK nationals returning home must provide evidence of a negative Covid-19 test taken up to 3 days before departure and must self-isolate for 10 days when they enter the UK from any foreign country except Ireland, unless they have a valid exemption. Currently all travel corridors for people arriving in England are suspended.
As to whether travellers are legally permitted to travel internationally, current UK COVID-19 restrictions mean that citizens must not leave home or travel, including internationally, unless with a legally permitted reason to do so . Guidance for each Nation is linked from the Foreign Travel advice page at GOV.UK.
Home Secretary Priti Patel set out "tougher measures" for UK border controls on the afternoon of 27th January.
Rights of Women survey
A survey published by the charity Rights of Women has revealed that online sexual harassment has increased whilst working through the Covid-19 pandemic.
No right to interim relief in sex discrimination claim
Requirement to teach in Croatian was breach of Article 8
Restrictive covenants imposed on junior employee were unenforceable
Race discrimination complaint was out of time