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What did I miss in 2020... and what's in store for 2021?

COVID-19 has undoubtedly occupied the minds of employment lawyers and businesses over the past 12 months; however, what else has happened in the world of employment law that we might have missed?

In our webinar, we looked at the changes that have taken place in the employment context over the past year and we looked ahead at the changes we can expect to see in 2021.

Looking back...

Section 1 changes

A number of key changes took place in April 2020. Firstly, we saw a change to the contents of written statements of employment which are required under section 1 of the Employment Rights Act 1996. The changes are as follows:

  • A written statement now must be given on day one for both employees and workers.
  • The statement must include the hours and days of the week that the employee/worker is required to work.
  • The statement must include details of any other benefits provided by the employer that are not already covered under section 1.
  • The statement must include any entitlement to paid leave (including maternity and paternity leave).
  • The statement must include details of any probationary period and its length.
  • The statement must include details of any mandatory training required by the employer and specify whether it is paid for by the employer or not.

See our article here for more details on these changes.

Vento bands

From April 2020, the benchmarks for injury to feelings awards in discrimination and whistleblowing claims increased to:

  • Lower Band: £900 – £9,000
  • Middle Band: £9,000 - £27,00
  • Upper Band: £27,000 - £45,000

See our article here for more details on the Vento bands.

This is an entirely discretionary award. In making an award, the tribunal will consider factors such as the vulnerability of the employee, the seriousness of the treatment and the impact the discriminatory treatment had on the employee.

Parental bereavement leave

Employed parents who have lost a child under the age of 18 or suffered a stillbirth from the 24th week of pregnancy, have been entitled to take statutory leave since April 2020. This right allows for two weeks’ leave whether they are consecutive or not. Statutory pay is limited to employees with more than 26 weeks’ continuous service and who earn in excess of the lower earnings limit.

Taxation of termination payments

From April 2020, termination payments made in excess of £30,000 will be subject to National Insurance deductions of 13.8%. This is something to bear in mind when payments are being made and negotiations are taking place.

Cap on public sector termination payments

Government brought in limit of £95,000 on public sector termination payments in November 2020 and subsequently scrapped this very quickly in February 2021.

Vicarious liability

2020 saw a number of new cases on vicarious liability. By way of context, the earlier case of Mohamud v WM Morrisons Supermarkets PLC [2016] found that the employer of a petrol station attendant was liable for an assault the attendant had carried out on a motorist. The court decided that the attendant made threats in the course of his employment and that this was a sufficiently close connection between his employment and the wrongful conduct.

In the case of WM Morrisons Supermarkets PLC v Various Claimants [2020], the Supreme Court overturned the decision of the High Court and the Court of Appeal and held that Morrisons was not vicariously liable for the actions of one of its employees. The employee copied payroll data onto a USB stick and shared the data on the internet and with three national newspapers. The Supreme Court found that Mr Skelton’s conduct was not closely connected with the acts he was authorised to do and as a result, they were not carried out in the ordinary course of his employment

A similar conclusion was drawn by the Supreme Court in Barclays Bank Plc v Various Claimants [2020] which held that the bank was not vicariously liable for sexual assaults committed by a doctor whom it had instructed to perform pre-employment medical assessments on job applicants. The court determined that the doctor had been in business on his own account and the bank was not liable.

Employment Tribunal changes

There is an intention to reduce bureaucracy and increase Tribunal capacity. Measures include:

  • appointing judges from other jurisdictions to sit in Employment Tribunals;
  • an increase in functions passed down to legal officers; and
  • changes to make it easier to conduct remote hearings.

See our article here for details on employment tribunal reforms.

ACAS changes

The ACAS early conciliator can now contact the employee or employer to correct any errors on the conciliation form at any point during the conciliation period. The early conciliation process has now also been extended to 6 weeks.

See our Passle post here for details.

Looking forward...

Brexit

The UK left the European Union on 31 January 2020 and the transition period ended at 11pm on 31 December 2020.

The UK government remains committed to ensuring that UK workers’ rights remain aligned with EU employment protection even after the UK’s withdrawal. This includes:

  • Discrimination laws
  • Equality and Human Rights
  • Family related leave
  • Transfer of Undertakings / Collective consultation
  • Holidays and Working Time

There are new UK immigration rules for non-UK nationals wanting to live and work in the UK – see below for more details.

Consultation on Restrictive Covenants

On 4 December 2020, the Department for Business, Enterprise, Innovation and Skills (BEIS) opened a consultation on measures to reform post-termination restrictions, specifically non-compete clauses in employment contracts. The consultation is considering:

  • barring them entirely;
  • adopting more nuanced covenants, e.g. paying the employee a percentage of their salary during the restrictive covenant period in order to improve enforceability; and/or
  • adopting a statutory limit on length of restrictions, e.g. 3, 6 months or 12 months.

This consultation closed on 26 February 2021.

Consultation on Exclusivity Clauses

On 4 December 2020, BEIS opened a further consultation on extending the ban on exclusivity clauses to all employment contracts where employees earn below the Lower Earnings Limit of £120 per week. As of 2015, clauses prohibiting workers from working under any other contract for services has been banned in zero-hour contracts. The possible extension is to address the imbalance caused by employers contractually restricting low paid employees from working elsewhere.

The consultation closed on 26 February 2021.

Gender/Ethnicity Pay Gap Reporting

The requirement for gender pay gap reporting was suspended temporarily during the pandemic. The EHRC now encourages reporting as soon as possible but no enforcement action will be taken as long as the business reports by 5 October 2021.

The government’s response is awaited on a consultation for mandatory ethnicity pay gap reporting which closed on 11 January 2019.

IR35 regime…again

The IR35 regime aims to prevent the avoidance or reduction of tax and NICs by the interposition of an intermediary between the client and the worker (usually known as a PSC). This was originally supposed to be implemented in April 2020; however, this was delayed due to the pandemic. It will now come into force on 6 April 2021 and the regime will impose an obligation on large and medium sized private sector organisations who engage PSCs to make status determinations.

See our previous articles on the regime below:

IR35 Tax Reforms - The Essentials (Part One)
IR35 Tax Reforms - The Essentials (Part Two)
IR35 in the private sector: will you be ready?

COVID-19 vaccinations

Some employers have announced a ‘no jab, no job’ approach to COVID-19 vaccinations. Employers should be cautious of forcing employees to have vaccinations as this can give rise to potential employment claims. However, in some workplaces these policies may be considered more acceptable.

See our article here for more details.

Immigration – EU settlement status

EU nationals must apply for EU settled status by 30 June 2021, provided they have resided in the UK before the end of the transition period and have at least 5 years’ continuous residence in the UK. These individuals can then apply for British citizenship after they have had settled status for 12 months.

If any individuals resided in the UK before the end of the transition period but do not have 5 years’ continuous service, they can apply for pre-settled status and this will grant them 5 years’ leave to remain.

Employers can carry out normal right to work checks until 30 June 2021. From 1 July 2021, employers will need to see proof of immigration status under EU settlement scheme or new immigration system.

See our webinar notes here for more details on EU settlement status.

Sponsorship

If an employer wishes to employ EU or non-EU nationals (who have not been resident in the UK) after the end of the transition period, they must hold a sponsor licence in order to sponsor migrant workers. Applications should be made sooner rather than later as they can take around 6 weeks to be processed.

See our previous webinar notes here for details on sponsorship.

Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

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