Employment Law

Public Health England has published new guidance specifically for employers and businesses on the novel coronavirus, COVID-19. The government says that the new guidance will assist employers and businesses in providing advice to staff on:

• the novel coronavirus, COVID-19
• how to help prevent spread of all respiratory infections, including COVID-19
• what to do if someone with suspected or confirmed COVID-19 has been in a workplace setting
• what advice to give to individuals who have travelled to specific areas, as outlined by the Chief Medical Officer 
• advice for the certification of absence from work resulting from COVID-19.

In addition, the government is publishing online daily updates for the general public on COVID-19, containing the latest information and advice, including on the current situation in the UK.

The government has now published its response to the review into the implementation of changes to the off-payroll working rules (IR35) for the private sector. Following the conclusion of this review, the government has confirmed that the changes will still take effect as planned from 6 April 2020, but there will be a package of measures designed to support the roll-out of the changes. Under the measures:

• businesses will not have to pay a penalty for inaccuracies and errors relating to the off-payroll rules in the first year, except in cases of deliberate non-compliance
• HMRC is confirming its previous commitment that information resulting from the changes will not be used to open new investigations into personal service companies (PSCs) for past tax years, unless there is reason to suspect fraud or criminal behaviour
• the draft legislation will place a new legal obligation on client organisations to respond to a request for information about their size from the worker or agency, i.e. whether or not they are a small business and so exempt from the changes, to make it clearer who is responsible for determining the worker’s tax status
• the draft legislation will be amended to exclude wholly overseas organisations with no UK presence from having to consider the changes (and the current rules will therefore continue to apply where the client is wholly overseas)
• HMRC will increase its communication efforts to support contractors in their understanding of the rules. 

In addition, HMRC has published various communication resources on the reforms. These are designed to be widely circulated to help publicise the changes.

A new Finance Bill 2020 is expected to be published on 19 March 2020 to bring the changes into force.

Acas has published new guidance for employers and employees on the coronavirus. The guidance covers:

• what to do if employees do not want to go to work
• sick pay
• what to do if employers need to close the workplace
• other steps for employers to take. 
   

As part of a review into changes to the operation of the off-payroll working rules (IR35), HMRC has announced that the changes will only apply to payments made for services provided on or after 6 April 2020. Previously, the rules would have applied to any payments made on or after 6 April 2020, regardless of when the services were carried out. It means businesses will only need to determine whether the rules apply for contracts they plan to continue beyond 6 April 2020, giving businesses more time to prepare. The latest position is now set out in the updated guidance in the Employment Status Manual.

The formal publication of a review into the implementation of changes to the off-payroll working rules is due to conclude later in February 2020.

Following Brexit, the government has published an updated toolkit for employers on how to support their employees who are EU citizens (including EEA and Swiss citizens) to apply to stay in the UK. The content includes print and digital fact sheets, leaflets and posters covering the key areas of the EU Settlement Scheme, i.e. eligibility, the application process, the wide range of support available and the deadline for applications. It also includes a template letter that employers can give to their staff and a presentation they can use to introduce the EU Settlement Scheme. 

EU citizens and their family members (including non-EU citizens) need to apply to the EU Settlement Scheme to continue to live, work and study in the UK. The deadline for applications to the scheme is 30 June 2021. It is the responsibility of the individual to make an application to the scheme and there is no requirement for them to inform their employer that they have applied, or the outcome of their application. Employers have a duty not to discriminate against EU citizens in light of the UK’s decision to leave the EU and, as such, they cannot make an offer of employment, or continued employment, dependent on an individual having made an application to the scheme.

Job applicants can prove their right to work using any of the following:

• their valid passport or national identity card if they are an EU, EEA or Swiss citizen
• their valid biometric residence card if they are a non-EU, EEA or Swiss citizen family member
• their status under the EU Settlement Scheme using the Home Office’s online right to work checking service.

There will be no change to right to work checks until 1 January 2021 and employers will not be required to undertake retrospective checks on existing employees who are EU citizens. A new immigration system will apply to people arriving on or after 1 January 2021 and new right to work checks will then apply.

The draft National Minimum Wage (Amendment) Regulations 2020 have been laid before Parliament and are due to come into force on 1 April 2020. The regulations will increase the various rates of the National Minimum Wage (NMW) and National Living Wage (NLW) as follows:

• the NLW rate for workers aged 25 and over will rise from £8.21 to £8.72 per hour
• the NMW standard rate for workers aged 21 to 24 will rise from £7.70 to £8.20 per hour
• the NMW development rate for workers aged 18 to 20 will rise from £6.15 to £6.45 per hour
• the NMW young workers rate for those aged 16 and 17 will rise from £4.35 to £4.55 per hour
• the NMW apprentice rate for apprentices under 19 years of age or those aged 19 and over but in the first year of their apprenticeship will rise from £3.90 to £4.15 per hour
• the daily offset for the provision of living accommodation will rise from £7.55 to £8.20 per day.

Following the government policy paper published in January 2020, announcing the proposed new rates for statutory maternity pay (SMP), statutory adoption pay (SAP), statutory paternity pay (SPP), statutory shared parental pay (ShPP) and statutory sick pay (SSP) for tax year 2020/21, the government has now published the draft Social Security Benefits Up-rating Order 2020 which confirms the figures. 

The standard weekly rates of SMP, SAP, SPP and ShPP will increase from £148.68 to £151.20 from 5 April 2020 and the weekly rate of SSP will increase from £94.25 to £95.85 from 6 April 2020. 

The draft Social Security Regulations 2020 confirm that the lower earnings limit, below which employees are not entitled to SMP, SAP, SPP, ShPP and SSP, will increase from £118.00 to £120.00 per week from 6 April 2020.

The Equality and Human Rights Commission (EHRC) has published new technical guidance on sexual harassment and harassment at work. It replaces previous guidance published in December 2017.

The new guidance explains employers’ legal responsibilities and the practical steps they should take to prevent and respond to harassment and victimisation at work. It also provides advice for workers to help them understand the law and their employer’s obligations to prevent harassment and victimisation, or to respond to their complaint.

The guidance sets out the different forms that harassment and victimisation can take under the Equality Act 2010 and reiterates that certain types of behaviour, such as physical gestures, jokes or pranks, banter and physical behaviour towards a person or their property, can amount to harassment or sexual harassment even if that is not how it was intended by the perpetrator.

Finally, the guidance provides employment tribunals and courts with clear direction on the law and best practice steps that employers could take to prevent and deal with harassment and victimisation. It is expected to become a statutory code of practice in due course.

Alongside the technical guidance, the EHRC has published seven steps every employer should consider taking to ensure they are doing all they can to prevent and deal with sexual harassment in the workplace. These are:

1. Developing an effective anti-harassment policy
2. Engaging staff with regular one-to-ones and having an open-door policy
3. Assessing and mitigating risks in the workplace
4. Considering using a reporting system that allows workers to raise an issue anonymously or in name
5. Training staff on what sexual harassment in the workplace looks like, what to do if workers experience it and how to handle complaints
6. Acting immediately when a harassment complaint is made
7. Treating harassment by a third party just as seriously as that by a work colleague.

According to proposals set out in a government policy paper, the revised rates for statutory maternity pay (SMP), statutory adoption pay (SAP), statutory paternity pay (SPP), statutory shared parental pay (ShPP) and statutory sick pay (SSP) for tax year 2020/21 are to be as follows:

• the standard weekly rates of SMP, SAP, SPP and ShPP will increase from £148.68 to £151.20 (or 90% of the employee’s weekly earnings if that amount is lower than the statutory rate) – it is assumed this will be for payment weeks commencing on or after Sunday, 5 April 2020
• the prescribed weekly rate of maternity allowance (MA) will increase from £148.68 to £151.20 (or 90% of the individual’s weekly earnings if that amount is lower than the statutory rate)
• the weekly rate of SSP will increase from £94.25 to £95.85 from 6 April 2020.

The amount of the earnings threshold (currently £118.00 per week) for tax year 2020/21, below which employees are not entitled to SMP, SAP, SPP, ShPP and SSP, is yet to be confirmed.

The government has accepted the recommendations of the Low Pay Commission in full and has announced that it will increase the National Living Wage (NLW) and National Minimum Wage (NMW) rates from 1 April 2020 as follows:

• the NLW rate for workers aged 25 and over will increase from £8.21 to £8.72 per hour – this represents a pay rise of 6.2% and is the biggest increase ever to the NLW 
• the standard adult NMW rate for workers aged 21 to 24 will increase from £7.70 to £8.20 per hour
• the NMW rate for workers aged 18 to 20 will increase from £6.15 to £6.45 per hour
• the young workers NMW rate for those aged 16 and 17 will increase from £4.35 to £4.55 per hour
• the apprentice NMW rate (apprentices under 19 years of age, or those aged 19 and over but in the first year of their apprenticeship) will increase from £3.90 to £4.15 per hour.