Emplaw Monthly - End of September 2021
FOCUS ON EMPLAW CONTENT
As furlough ends, there is increased focus on changes in the workplace. The Emplaw law card on Changing Terms of Employment is essential reading. It includes an explanation of the legal principles behind and the limitations surrounding ‘Fire and Re-hire’ practices (full content available to Emplaw subscribers only).
NEW FROM OUR AUTHORS
Government consults on flexible working rights
In this article, Emplaw authors Lewis Silkin review the modest proposals in the consultation as well as providing a quick resume of existing rights.
Employment law update webinar - 10th November
Free employment law update webinar, from Emplaw authors Moorcrofts, to make sure businesses are aware of the changing employment law landscape.
For more information, click here
EMPLOYER/ADVISOR NEED TO KNOW
Close your gender pay gap toolkit
The Equality and Human Rights Commission and the Chartered Management Institute have published a toolkit for businesses to help with gender pay gap reporting.
Health and social care levy
From April 2022, the government will introduce a new, UK-wide 1.25 per cent Health and Social Care Levy, ringfenced for health and social care. This will be based on National Insurance contributions (NICs) and from 2023 will be legislatively separate.
All working adults, including those over the state pension age, will pay the levy and the rates of dividend tax will also increase by 1.25% to help fund this package.
Statement of changes in immigration rules
The government has published a statement of changes of immigration rules, most of which will come into force on 1 October 2021.
The concessions include coronavirus concessions where, for example, migrants have broken their continuous period in the UK due to the pandemic.
CONSULTATIONS AND REPORTS
Consultation: ‘Making flexible working the default’
This government consultation sets out five proposals for reshaping the existing regulatory framework so that it better supports the objective of making flexible working the default. The intention is to better support employees to start the conversation about contract changes, and employers to respond. It considers:
- making the Right to Request Flexible Working a day one right;
- whether the eight business reasons for refusing a Request all remain valid;
- requiring the employer to suggest alternatives;
- the administrative process underpinning the Right to Request Flexible Working;
- and requesting a temporary arrangement.
The consultation closes on 1 December 2021.
See also the article from Emplaw authors Lewis Silkin which reviews the modest proposals in the consultation as well as providing a quick resume of existing rights.
Unpaid carers leave to be introduced
The government response to this consultation, which ran between March and August 2020, on giving unpaid carers a new right to a week of leave has been published. It confirms its intention to introduce an entitlement for such carers to take up to one week (5 working days) of unpaid leave per year. It will apply as a day 1 right for employees and dismissals for reasons connected with exercising the right to carer’s leave will be automatically unfair dismissal
The response outlines the decisions that government has taken on what the leave entitlement will look like. It sets out key details including:
- how eligibility will be defined
- how the leave can be taken
- what the leave can be used for
It also provides a summary of the responses from individuals and stakeholders.
Legislation to introduce carer’s leave as a day 1 statutory employment right will be brought forward when parliamentary time allows.
Government response to consultation on tipping, gratuities, cover and service charges
There are presently no specific legal rules regarding the proportion of discretionary payments for service that must go to workers. The relevant legislative frameworks are in place for the National Minimum Wage, Income Tax and National Insurance Contributions (NICs), and tipping practices are also covered by the Consumer Protection from Unfair Trading Regulations 2008. As of 2009, tips cannot be used to count toward National Minimum Wage pay.
The current voluntary Code of Practice was introduced in 2009 to increase transparency to employers about how to handle discretionary payments for service. Evidence shows this guidance is not used widely and therefore it alone is insufficient to ensure transparency in how tips are treated and that staff receive their fair share of tips.
The government states that it will bring forward measures to ensure tips, gratuities and service charges go to workers in full as part of an upcoming Employment Bill.
These legislative measures will include:
- Requirements for employers in all sectors to not make any deductions from tips received by their staff, including admin charges, other than those required by tax law.
- Requirements for employers to distribute tips in a way that is fair and transparent, with a written policy on tips, and a record of how tips have been dealt with. Employers will be able to distribute tips via a tronc, and a tip must be dealt with no later than the end of the month following the month in which it was paid by the customer.
- Provisions to allow workers to make a request for information relating to an employer’s tipping record. Employers will have flexibility how to design and communicate a tipping record, but should respond within four weeks.
- Requirements for employers to have regard to a statutory Code of Practice on Tipping.
- Where employers fail to comply with these measures, this will be enabled through Employment Tribunal.
The Employment Bill will be brought forward when Parliamentary time allows. The rules are expected to commence no earlier than one year after the Bill has passed.
COVID-19 AND THE WORKPLACE
Vaccination in care homes – Acas guidance, temporary self-certification system and legal challenge
Acas has published guidance on vaccination in care homes, whilst the government has given some guidance on medical exemptions and introduced a scheme whereby workers who have a medical reason not to be vaccinated or were vaccinated abroad can self-certify their exemption. Meanwhile judicial review proceedings are being brought by care home workers challenging the legislation.
From 11 November 2021, anyone who works inside a Care Quality Commission (CQC) registered care home in England must be fully vaccinated against coronavirus (COVID-19), unless they're exempt. This only applies to CQC-registered care homes that provide accommodation for people needing nursing or personal care.
This will apply to most people who enter the care home for work, including:
- agency workers
- contractors or self-employed people hired to carry out work in a care home, for example tradespeople, occupational therapists or hairdressers
- people not employed by the care home who need to enter for work, for example doctors, nurses and CQC inspectors
- work experience students
- job applicants attending an interview
This includes people who live in Scotland or Wales but work in a CQC-registered care home in England.
For further background, see the article in Emplaw Monthly – End of Summer 2021.
Meanwhile, on 15 September 2021, the Department of Health and Social Care published a letter outlining how, on a temporary basis, people working or volunteering in care homes who have a medical reason why they are unable to have a COVID-19 vaccine will be able to self-certify that they meet the medical exemption criteria. The letter sets out some, albeit limited, guidance on when a medical exemption may apply. Interestingly, these include a time-limited exemption for pregnant women should they choose to take it. Individuals that have received a COVID-19 vaccination abroad can also self-certify as medically exempt because it is not clinically appropriate for them to be vaccinated in the UK if they have already received a partial or full course of vaccination overseas.
Self-certification forms are also available on the site.
Meanwhile judicial review proceedings are being brought by care home workers challenging the legislation. Their claims include that the Health Secretary failed to consider the efficacy of alternatives to mandatory vaccination and did not consider the vaccination rate of care homes and/or persons with natural immunity.
SSP Rebate Scheme to close on 30 September 2021
Regulations have been made to close the scheme whereby eligible employers with fewer than 250 employees (as at 28 February 2020) could apply to HMRC for reimbursement of statutory sick pay (SSP) paid for sickness absence due to COVID-19.
Consultation on mandatory vaccination for frontline health and care staff
The government is consulting on requiring mandatory flu and COVID-19 vaccines. The consultation closes on 22 October 2021.
R (on the application of Cornerstone (North East) Adoption and Fostering Services Ltd v HM Chief Inspector of Education, Children’s Services and Skills (Ofsted)
Lack of appeal does not automatically render dismissal unfair
Shelley Barratt and Ioan Hughes were former employees of the Council, which is the local education authority for the county of Gwynedd. Both were employed by the Council as teachers of physical education at Ysgol y Gader, a community secondary school; were dismissed on 31 August 2017 upon the school's closure; and were members of the National Association of Schoolmasters/Union of Women Teachers (NASUWT).
Smallman & Sons Limited, Lisa Garrity, Brian Garrity v the Commissioners For Her Majesty’s Revenue And Customs
Tax and NICs on company cars acquired on lease purchase in company name
These appeals are concerned with liabilities to income tax and Class 1A national insurance contributions (and associated penalties) imposed on Smallman & Sons (SSL), Lisa Garrity (LG) and Brian Garrity (BG) (together, the Appellants) in respect of company cars acquired on lease purchase in the name of SSL and used by LG and BG and a member of their family during the tax years 2011-12 to 2016-17 inclusive.
Working Time Directive – interrupted rest breaks could amount to working time
This request for a preliminary ruling concerns the interpretation of Article 2 of Directive 2003/88/EC concerning certain aspects of the organisation of working time.
Recitals 4 and 5 of Directive 2003/88 state: