Employment Law

A new consultation launched jointly by the Department for Work and Pensions and the Department of Health and Social Care, is seeking views on different ways in which both the Government and employers can take action to reduce ill health-related job loss.

The consultation is examining a number of specific proposals including:

• Reforming Statutory Sick Pay (SSP) so that it is better enforced, more flexible and covers the lowest paid employees. This would extend SSP protection to around 2 million low-paid employees.
• Offering more support to employees with health issues affecting their work.
• Refining occupational health provision especially for small employers and self-employed people.
• Improving employers’ and self-employed people’s access to good advice and support.

The consultation is also examining how a rebate of SSP for SMEs could better help support small businesses, who effectively manage employees on sickness absence and help get them back to work. For example, changing shift patterns for employees can have a big effect.

Research has shown, that each year more than 100,000 people leave their job following a period of sickness absence lasting at least 4 weeks. The longer an employee is out of work on sickness leave, the less likely they are to return to employment and this can also result in further health deterioration.

Work and Pensions Secretary Amber Rudd said:

'I want Britain to be an environment where disabled people and those with health conditions can thrive, not just survive – not only in work but every area of their lives. Good work is good for our mental and physical health, and by working closely with employers we can help prevent the loss of talent when people unnecessarily leave the workplace.'

The consultation is open for comment until 7 October 2019 and it will be interesting to see what new proposals will be put forward.

The National Insurance Contributions (Termination Awards and Sporting Testimonials) Bill has received Royal Assent, to become the National Insurance Contributions (Termination Awards and Sporting Testimonials) Act 2019.

The Act aligns the employer NICs treatment of termination awards in excess of £30,000, received in connection with the termination of an individual’s employment, with the Income Tax treatment for such payments, by introducing a new 13.8% Class 1A employer NIC charge to any part of a termination award that is already Income Tax liable. Termination awards will remain exempt from employee NICs. The provisions are expected to take effect from 6 April 2020.

Every three years, employers must put certain eligible workers who have left their automatic enrolment workplace pension scheme back into it. This is called re-enrolment. Employers must also complete and submit a re-declaration of compliance to tell The Pensions Regulator (TPR) how they have met their re-enrolment duties, even if they do not have any workers to re-enrol. This re-declaration confirms the employer has checked whether it needs to re-enrol any of its workers or not. Re-enrolment and re-declaration are legal requirements and a failure to comply could result in a fine.

As thousands of small and micro employers are reaching their re-enrolment dates in the coming months, TPR has now launched a new online resource to enable employers to re-enrol their staff into their workplace pension scheme more simply. The tool asks a series of questions and employers’ answers will enable them to find out what they need to do and by when.
 

As the summer holiday season is upon us, we thought that it would be useful to remind employees of their annual holiday entitlement. Almost all full-time workers in the UK are legally entitled to 5.6 weeks' (or 28 days) paid holiday per year. This is known as statutory leave entitlement or annual leave. Legally, employers can include bank holidays as part of statutory leave, although not all employers do this. Employers are also free to provide additional non statutory holiday entitlement.

An employee’s actual statutory entitlement depends on how many days they work per week, but all employees including part-time, agency or casual workers are entitled to holiday. There is no statutory entitlement to holidays for the self-employed and there are special rules for those in the armed forces, police and civil protection services.

Part-time workers are entitled to a pro-rata entitlement. For example, 5.6 days holiday per year if they work one day a week. Employees who work irregular days or hours or that are in the first year of a new job can use HMRC’s holiday entitlement calculator to work out how many days they are entitled to.
  
HMRC is clear that workers have the right to:

• get paid for leave;
• build up holiday entitlement during maternity, paternity and adoption leave;
• build up holiday entitlement while off work sick;
• request holiday at the same time as sick leave.

Any employee that has a problem with their holiday pay should try and resolve the issue with their employer. If this does not work, there are a number of ways to resolve the dispute including contacting ACAS or taking the employer to an employment tribunal.

The use of zero-hour contracts has become widespread in many sectors including the food service, retail, healthcare and leisure sectors. For employers, zero-hour contracts offer many advantages, for example, that the employer does not have to guarantee any hours of work and can offer workers changeable working hours at short notice.  The workers may or may not be required to accept any work that is offered depending on the terms of the contract.

On the flip side, for many employees there is great insecurity with these contracts and they are often at the beck and call of their employers. Employees do not have any certainty on the minimum number of hours they will be able to work each week. Apart from not knowing how much they are going to earn on a week-by-week basis, a number of employees on zero-hours contracts also find it difficult to obtain financing due to not having a guaranteed income. The flexibility of these arrangements does suit some workers.

All zero-hours workers are entitled to statutory annual leave and the National Minimum Wage in the same way as regular workers. Employers are also powerless to stop a zero-hours worker from getting work elsewhere. The law says they can ignore a clause in their contract if it bans them from looking for work and / or accepting work from another employer.

Following an extensive investigation, the Information Commissioner’s Office (ICO) has announced that it has issued a notice of its intention to fine British Airways (BA) £183.39 million for infringements of the General Data Protection Regulation (GDPR). If imposed, the fine will be a record amount in the UK for breach of data protection laws. The infringements relate to an incident in summer 2018 when cyber attackers gained access to the personal data of around 500,000 BA customers, due to poor security measures. User traffic to the BA website was diverted to a fraudulent site, where customer details were harvested by the cyber attackers. A variety of information was compromised by the poor security arrangements, including log in, payment card and travel booking details, as well as name and address information. BA will have the opportunity to make representations to the ICO before it makes its final decision. The ICO noted in its announcement that BA has cooperated with its investigation and has made improvements to its security arrangements following the breach.

The ICO has also announced that it has issued a notice of intention to fine Marriott International, Inc. (Marriott) £99,200,396 for infringements of the GDPR in connection with a cyber incident affecting approximately 339 million guest records held globally in Starwood hotels' guest reservation database. The vulnerability apparently began when the systems of the Starwood hotels group were compromised in 2014. Marriott acquired Starwood in 2016, but the exposure of customer information was only discovered in 2018 and Marriott then notified the ICO. The ICO found that Marriott had failed to undertake sufficient due diligence when it bought Starwood and should also have done more to secure its systems. Marriott has again cooperated with the ICO's investigation and has made improvements to its security arrangements following the breach. Marriott will now have the opportunity to make representations to the ICO as to the proposed findings and sanction.

The ICO is dealing with both cases as the lead supervisory authority on behalf of other EU member state data protection authorities. Under the GDPR, the data protection authorities in other EU member states whose nationals have been affected by the two breaches will also have the chance to comment on the ICO's findings.

The rules for individuals providing services to the public sector via an intermediary such as a Personal Service Company (PSC) changed from April 2017. The new rules shifted the responsibility for deciding whether the intermediaries’ legislation applies, known as IR35, from the intermediary itself to the public sector receiving the service.

In the Autumn Budget 2017 the government announced plans looking to extend these rules to off-payroll working in the private sector. A consultation on the proposed changes was published in May 2018 and the government announced at Autumn Budget 2018 that it would extend the public sector reform to all engagements with medium and large-sized organisations. The new rules will come into effect from April 2020 and are expected to raise over £1.1bn for the public purse in 2020-21.

A 5% allowance is currently available to those who apply the off-payroll working rules to reflect the costs of administering them. This allowance will be removed for those engagements with medium and large-sized organisations. The allowance will continue to be available to small firms who will be exempt from the new rules.

The Information Commissioner's Office (ICO) has published new guidance on the use of cookies and similar technologies, as well as an associated blog. 

The guidance looks at cookies and similar technologies in detail and it is relevant to any organisations operating online services such as websites or mobile apps. It covers:

• What cookies and similar technologies are
• What the rules are on cookies and similar technologies
• How the cookie rules relate to the GDPR
• How to comply with the cookie rules
• Other matters to consider.

 
The blog highlights, and aims to debunk, the myths that:

• Organisations can rely on implied consent for cookies
• Analytics cookies are strictly necessary, so consent is not needed
• Organisations can use a cookie wall to restrict access to their websites until users consent
• Organisations can rely on legitimate interests to set cookies, so consent is not needed
• The ICO wants online services to stop using cookies and similar technologies.

The ICO highlights that cookie compliance will be an increasing regulatory priority for it in the future an

The National Cyber Security Centre (NCSC) has published guidance to help small to medium sized organisations prepare their response to, and plan their recovery from, a cyber incident. 

The “Small Business Guide: Response & Recovery” has been produced by the NCSC in response to questions raised by SMEs following the earlier publication of its “Cyber Security: Small Business Guide” in 2017 and it’s intended to be a companion to that guide. The NCSC estimates that there is a one in two chance that UK businesses will experience a cyber security breach.

The NCSC define a cyber incident as unauthorised access, or attempted access, to an organisation's IT systems. These may be malicious attacks (such as denial of service attacks, malware infection, ransomware or phishing attacks) or could be accidental incidents (such as damage from fire, flood or theft). The new guidance maps out a response to an incident over the following five stages:

1. Preparation for incidents.
2. Identifying what’s happening.
3. Resolving the incident.
4. Reporting the incident to wider stakeholders.
5. Learning from the incident.

The guidance includes practical advice on what to do at each stage, including action points. It also advises that SMEs who are experiencing a live cyber incident should call Action Fraud immediately on 0300 123 2040 and then press 9 on their keypad. This will allow the call to be dealt with as a priority and the live incident will be triaged over the phone. The incident will then be passed to the National Fraud Intelligence Bureau (NFIB) who will review the report and conduct a range of enquiries and it may then get passed to the relevant police agency.

The government has announced that the date of next year’s early May bank holiday is to move from Monday, 4 May to Friday, 8 May to mark the 75th anniversary of VE Day. This is only the second time ever that the early May bank holiday has been moved – the first was in 1995 to mark the 50th anniversary of VE Day. There will be commemorative events taking place across the country over the three-day weekend to honour the sacrifice made by men and women during the Second World War. VE Day was first celebrated on 8 May 1945 when Allied Forces formally accepted Germany’s surrender.

The early May bank holiday will move in England, Wales and Northern Ireland, where it is achieved by a Royal Proclamation made under the Banking and Financial Dealings Act 1971. Bank holidays are a devolved issue in Scotland. However, Scottish Ministers have also confirmed the change of date on the Scottish government’s website.