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Employment round up - what to expect from 2021

4th February 2021

Employment round up - what to expect from 2021

As we begin the New Year, we are anticipating that the Covid-19 pandemic will continue to have a considerable impact on employment law. In particular, the rollout of the UK’s vaccination programme, the end of furlough and return to work.  

Covid-19 aside, there are some other important changes to employment law that you should be aware of this year.

In this edition, we will be covering:

  1. Employment law issues arising from the rollout of the Covid-19 vaccination programme;
  2. The end of furlough and the return to work; and
  3. Hot topics in 2021.

Legal Update #1 – Employment law issues arising from the rollout of the Covid-19 vaccination programme

The rollout of the Covid-19 vaccine is currently at the centre of everyone’s attention in the UK, with the hope that it will allow us to gradually return to some form of normality in the near future.

The government has set the goal of vaccinating 15 million people in the top four priority groups (residents of care homes for older adults and their carers, 80-year-olds and over, front-line healthcare workers, 70-year-olds and over and clinically extremely vulnerable individuals) by 15 February 2021. The government also aims to vaccinate a further 17 million people who are over 50 or between the ages of 16 and 64 with an underlying health condition by the spring. Dominic Raab, Foreign Secretary, has vowed that every adult in the UK will be offered a vaccination before September 2021.

With all that in mind, vaccinations will be an important consideration for employers when workplaces are able to reopen, as they give rise to various potential legal issues.

Tim Jones and Lucy Williams, both of the Higgs & Sons employment team, take a closer look at the issues.

Can an employer force its employees to have a Covid-19 vaccine?

Guidance from workplace experts Acas states that ‘employers should support staff in getting the coronavirus (COVID-19) vaccine, but they cannot force staff to be vaccinated.’

As the government has decided to not make vaccinations compulsory, it is difficult for employers to enforce a mandatory vaccination policy.

The Acas guidance does, however, note that employers ‘may decide it’s necessary for staff to be vaccinated. This should only be the case if getting the vaccine is required for someone to do their job.’ It gives the example of having to travel overseas for work and needing to be vaccinated in order to do so.

It could also be the case that employers will want their employees to be vaccinated if they work with extremely vulnerable people. For instance, care workers could be required to be vaccinated by their employers. It is possible that a directive to be vaccinated in this scenario could be a reasonable management instruction given by the employer. However, all of the circumstances would have to be considered and it would be sensible for an employer to undertake a risk assessment before requiring that anyone must be vaccinated.

Where people are able to work from home, do not frequently come into contact with those at risk in their work or where there is no requirement of vaccination in order to carry out their job, it will be very difficult for employers to justify a mandatory vaccination policy.

Instead, employers can communicate with staff to encourage a voluntary take-up of the vaccine. An employer has a duty of care towards its employees and promoting the vaccine could fall within an employer’s duty to protect the health and safety of its staff. This is especially the case as we know that, in order to successfully reduce community transmission of Covid-19, there needs to be a large take-up of the vaccine.

Could an employer discipline an employee who refuses to have a vaccine?

According to Acas, if an employer believes that someone’s reason for refusing a vaccine is unreasonable, this could result in a disciplinary procedure in certain situations. It would depend on the employer’s vaccination policy and whether vaccination is necessary to do the job as detailed above.

If an employer gives a reasonable management instruction to be vaccinated because it is necessary for the employee to carry out the work and the employee refuses to follow this instruction, dismissal could be fair providing the appropriate procedure was followed.

The employee should be given the chance to explain their reasoning for refusing to be vaccinated and the employer should assess the reasonableness of the employee’s rationale before taking any disciplinary action.

Nevertheless, an employer should always think very carefully before disciplining an employee for refusing to be vaccinated as a tribunal may be cautious to find that it is fair to impose a medical procedure on employees.

There is also the possibility that requiring an employee to be vaccinated could infringe on their individual right to privacy under the Human Rights Act 1998. It should therefore be considered if there are less invasive means of reducing the risk of Covid-19 transmission at work before disciplining a refusal to be vaccinated.

Discrimination risks

Employers should also consider potential discrimination issues if they are going to require employees to be vaccinated and consider penalising those that refuse.

The vaccines being rolled out in the UK will not be suitable for all people. For instance, the vaccines are not recommended for those who are pregnant unless ‘the benefits outweigh the risks’ and they are not safe for some people with certain health conditions or severe allergies.

Additionally, the vaccine is currently only available to people of a certain age and the extremely clinically vulnerable. There is also the chance that employees who hold particular religious or philosophical beliefs may object to being vaccinated on such grounds.

Therefore, requiring that all employees are vaccinated could risk arguments of sex or pregnancy discrimination, age discrimination, disability discrimination or discrimination because of religion or belief. Due to this, any vaccination policy would have to allow for exceptions.

On this basis, employers should also think carefully about only allowing employees who have been vaccinated to attend the workplace. This could give rise to potential discrimination claims for the reasons outlined above. Furthermore, any reduction in pay associated with unvaccinated employees not being able to attend the workplace could also lead to breach of contract or unlawful deduction from wages claims.


Health & safety issues

As we know, the vaccines do not offer 100% protection from Covid-19 and some employees may not be able to access the vaccines or it may not be safe for them to do so. For this reason, employers should tread carefully if they are considering using vaccinations as a means of reducing transmission in the workplace.

In order to avoid potential discrimination issues, and to protect the safety of the workforce, employers should consider continuing with other health and safety measures to reduce the risk of transmission, such as social distancing, washing hands, and working from home where possible.

Data-protection issues

Understandably, employers may wish to keep a record of who has been vaccinated in order to control the transmission of Covid-19 in the workplace. However, employers should bear in mind that obtaining vaccination details from staff will constitute the processing of special category personal data. It will therefore be necessary that employers keep records in accordance with GDPR and data protection laws.

Legal Update #2 – End of furlough and return to work

As the country endures its third national lockdown, and many employees remain working from home, a mass return to the workplace is certainly not imminent. Nevertheless, the rollout of the vaccination programme provides some hope that life may gradually return to some form of normality this year, including a return to the workplace for many employees and workers.

Employers need to plan for phased return to work when the furlough scheme ends in April 2021 and the country starts to emerge from lockdown. Employers should be prepared to be flexible as they put measures in place given the likelihood that COVID-19 will remain a risk for the foreseeable future and resurgence in infections may result in us facing further restrictions.

Employers should therefore begin to consider whether, and if so, how, they may start to reopen their businesses this year, what their future workforce and workplace is going to look like, issues they may face going forward and what steps need to be taken as a result of furlough ending at the end of April 2021.

Acas guidance states that employers should consult with staff about the return to work. Employers should also check if they must formally consult with a trade union or employee representatives. The guidance sets out that employees and workers should be ready to return to work at short notice, but that employers should be flexible where possible.

Acas recommends that discussions with staff should include when staff might return to the workplace; how staff will travel to and from work; how health and safety is being reviewed and managed (including the latest risk assessment); any planned adjustments to the workplace; if there might be a phased return of the workforce; and working from home arrangements.

It is strongly advisable that employers discuss their plans with staff before making a decision or putting plans in writing since this can help staff understand and feel included in decisions. 

Some employees may resist returning to the workplace because they are concerned about catching Covid-19, they are at high-risk, they have not yet been vaccinated, or they have adapted to working form home. An employer should listen to any concerns that staff have about returning to work, bearing in mind their duty to protect the health and safety of all employees. If a solution cannot be reached, and an employee still refuses to return to work, they may be able to take annual leave or unpaid leave. However, employers do not have to consent to this and a refusal to return to the workplace without a valid reason could result in disciplinary action.

Employers may also find that their employees' mental health has been affected by the pandemic, due to various factors such as illness, finances, isolation, or concern for family members. Employers should take this into account when organising a return to the workplace. For instance, employers should circulate to employees their policies and the mental health support that is available to staff. If there is not support already in place, employers should consider setting up a support group, or putting in place workplace counselling, such as an Employee Assistance Programme. Acas has also published guidance, Coronavirus and mental health at work, on managing mental health at work during the pandemic.

What steps need to be taken as a result of furlough ending on 30 April 2021

Government guidance does not provide a procedure to end furlough. Nevertheless, most furlough agreements will have addressed this.

Notice to end furlough should be given in writing. The employer should consider providing an employee with the following information:

  • the date the employer wishes the employee to return to work;
  • the processes the employer has put in place to ensure the workplace is safe (where the employee is expected to return there) or how working from home will be facilitated (if the employee is expected to work from home);
  • variations to the employee’s contract that the employer wishes to impose (e.g. new lay-off/short-time working provisions or reduced hours); and
  • policy changes the employer has made (e.g. relating to when annual leave can be taken, home-working etc.)

Where there is not a contractual agreement which provides for bringing furlough to an end, and the employee refuses to return to work upon receiving notice to do so, arguably the employer is not obliged to pay their wages because they are not willing and able to work.

For the same reason, they are unlikely to be entitled to their wages if they refuse to return to work and there is a contractual agreement. They may also be subject to disciplinary action for their absence.

Nevertheless, where an employee does not wish to return to work after furlough, it is recommended that an employer discusses the situation with the employee and ascertains if there is a particular reason, such as shielding or childcare responsibilities, which explains their stance.

Legal Update #3 – Hot topics

There are number of key changes and developments to look out for in 2021:

National living wage (“NLW”) new rates from 1 April 2021:

  • NLW for workers aged 23 and over will be £8.91 per hour. 

National minimum wage (“NMW”) new rates from 1 April 2021:

  • Ages 21 and 22: £8.36 per hour.
  • Ages 18 to 20: £6.56 per hour.
  • Ages 16 and 17: £4.62 per hour.
  • Apprentice rate: £4.30 per hour.

Employment Bill

We are anticipating that a new Employment Bill will be published this year, following its announcement in the December 2019 Queen’s Speech. It is likely to include the following:

  1. A requirement that all tips and service charges go to workers in full. 

  2. The introduction of a single labour market enforcement agency to ensure that vulnerable workers are informed of their rights, and to support businesses compliance (as proposed as part of the Good Work Plan).

  3. The right to request a more predictable and stable contract after 26 weeks’ service (as part of the Good Work Plan).
  1. An extension of the period of redundancy protection for pregnant employees. Currently, an employer must offer an employee on maternity leave a suitable alternative vacancy, if one if available, before making them redundant. This proposal will mean that pregnant employees will receive protection from the moment they notify their employer of their pregnancy until six months after the end of their maternity leave.
  1. Paid leave for neonatal care (see below for further details).
  1. A week’s leave for unpaid carers (see below for further details).

Post-employment notice pay

From 6 April 2021, legislation amending the current formula for post-employment notice pay will come into force. The changes will prevent unfair outcomes in situations where an employee’s pay period is set out in months, whereas their contractual notice period is defined in weeks.

Non-compete clauses

On 4 December 2020, a consultation was opened to consider the reform of post-termination non-compete clauses. The consultation will look into requiring employers to pay compensation to employees whilst they comply with a non-compete clause. The consultation will also consider requiring that employers set out in writing the precise terms of a non-complete clause before the start of employment, a statutory limit on such clauses, or prohibiting them entirely. The consultation will close on 26 February 2021.

Exclusivity clauses

Another consultation was opened on 4 December 2020 to consider extending the ban on exclusivity clauses in employment contracts to cover those earning below the Lower Earnings Limit of £120 per week. These clauses currently prevent employees from working for other employers. The consultation will close on 26 February 2021.

Leave for unpaid carers

We await the government’s response following a consultation which closed on 3 August 2020, considering the proposal to grant employees (who are also unpaid carers) one week’s unpaid leave per year for the purpose of caring.

There is no confirmed timescale for the new right to be introduced, but it is likely to be included in the government’s anticipated Employment Bill (referred to above).

Neonatal leave and pay

In March 2020, the government proposed to introduce statutory neonatal paid leave for up to a maximum of 12 weeks for parents of babies requiring neonatal care.

The leave will be added on to the end of the parent’s period of maternity or paternity leave and will be available to all employees. 

It has not been confirmed when this new right will be implemented, but it is likely to be included in the Employment Bill (referred to above). 

Off-payroll working rules

The government announced in its autumn 2018 Budget that the off-payroll working rules would be extended to the private sector from April 2020. However, due to the ongoing pandemic, this has been delayed until 6 April 2021. These rules address a lack of compliance with IR35. The IR35 rules will apply where an individual personally performs services for medium or large clients in the private sector via an intermediary (usually a personal service company) in circumstances where, if the services were provided under a direct contract, the nature of the arrangement would be regarded for tax purposes as employment.

From 6 April 2021, the responsibility will shift from the personal service company to the client to establish if there is deemed employment and IR35 applies. Responsibility for making deductions for tax and national insurance will shift to the party which pays for the individual's services (‘the fee-payer’).

It is important that medium and large businesses assess whether these new rules will apply to their arrangements with independent contractors and what steps should be taken to ensure that they are complied with.

Brexit

The government reached a trade deal with the EU on 24 December 2020. The end of the transition period on 31 December meant that all EU law will be converted into domestic law and will be in place unless or until the government decides to amend or repeal the relevant domestic legislation.

The New Year has also seen the introduction of a new points-based immigration system for foreign citizens (excluding Irish nationals). The system treats all EU and non-EU citizens equally, with a focus on skilled workers. Many individuals will need sponsorship from their employers to apply under the Skilled Worker and Student routes into the UK. Sponsors will need to show that that they are filling a genuine vacancy. Any employers who wish to employ people from outside the UK should seek specialist advice. Please contact amy.brokenshire@higgsandsons.co.uk if you wish to discuss this further.

 

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