Welcome all to the January edition of the AdviserPlus newsletter.
In this month’s newsletter, we will be focusing on the impact Brexit has had on employment law and inform you of some proactive steps you should be taking if you employ non UK workers.
In addition, we bring you the latest updates on Coronavirus including the Job Retention Scheme (furlough), important things to think about if you are considering making the vaccine mandatory and how to arrange testing for essential workers. newsletter.
The UK left the European Union on 31st January 2020 and was in a transitional period until 31st December 2020. From 1st January 2021 the freedom of movement of people across the EU ceased and non UK workers must now adhere to the new immigration system.
The UK has agreed not to significantly change employment law to give UK businesses a competitive advantage over EU businesses therefore, the UK cannot weaken or reduce, in a manner affecting trade or investment between other EU States, its labour and social levels of protection below the levels in place at the end of the transition period. If they do, the EU may impose tariffs to offset any competitive advantage.
This means that it is unlikely any significant changes will be made but any changes will be communicated in due course.
There are a number of employment laws that are underpinned by EU regulations:
- Collective consultation
- Transfer of Undertakings (protection of employments) TUPE
- Family leave
- Working Time Regulations
The above will continue to apply unless this is changed by UK Parliament or the UK Higher Courts (Court of Appeal or Supreme Court).
GDPR regulations are currently under review and businesses can continue to share data with companies based in the EU if there is a requirement. All employers should continue to review any data they hold or share and ensure they are adhering to the current regulations.
Employing non UK workers
The withdrawal agreement contains provisions to protect the residence and work rights of Europeans residing in the UK before the end of the Brexit.
Proactive steps you should be taking now –
- Audit your current workforce to understand which employees may need support applying for pre-settled status or settled status and evidence that will be required from 1st July 2021.
- Review all employee records to ensure copies of correct right to work documents are held.
- Review employment contracts to ensure there are clauses allowing termination of employment with immediate effect if employees lose their right to work in the EU or fail to notify their employer in a change to their right to work status.
- Review your recruitment process and if there is a reliance on employees from outside the UK consider applying for a skilled worker visa sponsorship. You may wish to consider a cost recovery document which the employee signs to state that if they leave after a short amount of time, the cost of their visa (if the employer has chosen to cover this) will be recovered.
- Review current recruitment, discrimination and equal rights, social media and conduct policies to ensure right to work requirements are included and discrimination will not be tolerated.
- Communicate to all employees to reinforce your equal opportunities and anti-discrimination policies
Coronavirus Job Retention Scheme
In light of the national lockdown which was imposed on Wednesday 5 January 2021, resulting in schools and childcare to close, HMRC guidance has been updated.
Those employees who have caring responsibilities resulting from this can be placed on furlough. The guidance states:
“Your employee is eligible for the grant and can be furloughed, if they are unable to work, including from home or working reduced hours because they:
- Are clinically extremely vulnerable, or at the highest risk of severe illness from coronavirus and following public health guidance
- Have caring responsibilities resulting from coronavirus (COVID-19), such as caring for children who are at home as a result of school and childcare facilities closing, or caring for a vulnerable individual in their household”
In the line with the conditions of CJRS, employers and employees must discuss and agree to the terms of furlough and all agreements must be put in a written format. Employees who are being furloughed for the above reasons can be fully or flexibly furloughed, with any hours not being worked eligible for the furlough grant.
The furlough scheme has been extended until the end of April 2021 with the government continuing to contribute 80% towards wages.
As the vaccine programme is now underway, consideration may be being given to making the vaccine compulsory, but here is what you need to consider:
Possible breach of implied duty of trust and confidence – forcing an employee to have the vaccine could be considered a breach of trust and confidence entitling the employee to resign and bring a constructive unfair dismissal claim. As those within the things to NHS aren’t being forced to have the vaccine it is unlikely a tribunal will sympathise with arguments that the vaccination was an absolute requirement of the role.
Significant risks of discrimination – those with allergies, who are pregnant or breastfeeding, or of a particular religious belief (along with other legally protected groups) will not be able to agree to the vaccination. Job losses as a result are unlikely to be capable of justification.
Damage to reputation – we are likely to see significant litigation against those employers forcing employees to have the vaccine. You do not want to be making headlines for insisting on all employees are vaccinated.
Health and Safety claims – if there are health issues as a result of the vaccine, personal injury claims against you could be possible. Therefore, check your insurance.
Anyone with symptoms can get a coronavirus test, whatever their age.
Employers can refer essential workers for testing if they are self-isolating because either they or members of their household have coronavirus symptoms.
They can do this by uploading the names and contact details of self-isolating essential workers to the secure employer referral portal.
Referred essential workers will then receive a text message with a unique invitation code to book a test for themselves (if symptomatic) or their symptomatic household members at a regional testing site.
To get a login to the employer referral portal, employers of essential workers should email firstname.lastname@example.org with the following information:
- organisation name
- nature of the organisation’s business
- names (where possible) and email addresses of the 2 users who will load essential worker contact details
Once employer details have been verified, 2 login credentials will be provided for the employer referral portal.
Note: The above guidance was correct at the time of writing this article on 11/02/21 however, you need to be fluid in your approach to coronavirus as the policy and government guidance is changing rapidly. We therefore recommend you regularly check the government official guidance on the gov.uk website and news for updates or contact us if you have any specific questions.
If you have any questions regarding the content of this newsletter, or would like more information to support your business with the changes, please get in touch.