Key employment and business immigration developments for employers.
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Prime Minister Boris Johnson has confirmed that the Government's guidance to work from home wherever possible will be lifted on 19 July 2021, as England reaches the final stage of its roadmap out of lockdown. The announcement raises a number of issues for employers to consider.
We have been speaking to a number of clients about the following key considerations as workplaces look to reopen:
As has been the case throughout the past year, focusing on employee wellbeing and communication will be key to ensuring a smooth transition back to the workplace.
Employers are required to check that all employees have the right to work in the UK. Normally this involves seeing original documents in the presence of the individual. However, during the pandemic, temporary changes were made to the requirements to allow checks to be done virtually using scanned copies of documents with verification completed over a video call. The Home Office has now said that these temporary changes will come to an end on 31 August 2021. The changes had been originally extended to June and have now been extended further in line with the delay to the Government's roadmap out of lockdown.
From 1 September 2021, when carrying out right to work checks, employers must check the individual's original documents in the presence of the individual. Alternatively, where available, employers can do an online check via the Home Office online right to work check portal and complete verification via a video call with the individual, but this option is only available for certain employees (those with a biometric residence permit or card, EU nationals granted status under the EU Settlement Scheme or those granted status under the points-based immigration system – not employees with a British passport).
Employers who have done an adjusted check during the pandemic in line with the Home Office COVID-19 adjusted guidance do not need to carry out a retrospective check once the rules change on 1 September 2021. The Home Office had previously indicated that a retrospective check would be required but this is no longer necessary under its revised guidance.
On 1 July 2021, new requirements for right to work checks for EEA and Swiss nationals came into force. When recruiting an EEA or Swiss national from 1 July 2021 onwards the employer must now check the individual has status under the EU Settlement Scheme or has a work permit under the new points-based system:
Employers should update their recruitment and right to work checking procedures to reflect these changes.
The claimant in this case was a consultant for a not-for-profit thinktank. She engaged in debates about gender identity issues on social media and opposed legislation that would allow people to choose their gender. Her engagement was not renewed after some of her colleagues complained that her comments were offensive. She argued that this amounted to discrimination based on her beliefs. The Employment Tribunal had to decide, as a preliminary issue, whether her beliefs that sex is binary and that it is impossible for someone to change their biological sex qualified for protection under discrimination law. A core aspect of her beliefs was that she would refer to a person by the gender she considered appropriate, even if it caused offense.
The Tribunal initially concluded that her beliefs did not qualify for protection because they conflicted with the rights of others. However, on appeal, the Employment Appeal Tribunal disagreed. While the claimant's beliefs might have been offensive to some, they were still lawful and worthy of respect in a democratic society, so they were protected under discrimination law.
This case presents some real challenges for employers. It highlights the wide range of beliefs that can be protected in the workplace. For a belief to be protected, it must be genuinely held and be more than an opinion or viewpoint. It must also concern a weighty aspect of human life (rather than something trivial) and have a level of cogency, coherence and seriousness. Crucially, the belief must also be "worthy of respect in a democratic society" and not be incompatible with the dignity and rights of others. This case shows that a belief will not be excluded from protection merely because it offends others or is shocking – only extreme beliefs which advocate or incite violence or hatred or the degradation of others' rights would be excluded.
Employers must therefore tread a careful line between allowing employees to express their beliefs and protecting those who might be offended. In striking the balance, employers should distinguish between the beliefs themselves and the way they are expressed. Employers can, in general, take action against an employee who expresses their beliefs in an offensive or inappropriate way. However, taking action simply because the beliefs are unpalatable could land the employer in hot water.
A number of cases are making their way through Employment Tribunals concerning employees who have refused to return to work during the pandemic. Below are two examples:
Case 1: The employee in this case worked as a chef in a restaurant. He was initially placed on furlough as the restaurant was closed during the first lockdown. He was later asked to return to work when the employer looked to reopen the restaurant. However, he was concerned about catching COVID-19 and passing it on to his clinically vulnerable father. When he raised concerns about the lack of PPE or other COVID-secure precautions at the restaurant, he was told to "shut up and get on with it". He was later dismissed by text with the employer saying it would be running with a smaller team going forward.
The Employment Tribunal ruled that the dismissal was unfair. The employee had been dismissed because he had taken steps to protect his father in what he reasonably believed were circumstances of serious and imminent danger. This made the dismissal automatically unfair.
Case 2: The employee in this case worked for a company selling PPE, which remained open during the pandemic. The employee repeatedly asked to work from home or to be put on furlough because he was concerned about using public transport. The employer insisted that the role could only be done in the office and that furlough was not an option because the company was so busy, but offered the employee holiday or unpaid leave instead. The employee continued to ask to be put on furlough and was eventually dismissed. He argued that he was dismissed for taking steps to protect himself in circumstances of serious and imminent danger, namely the COVID-19 pandemic.
The employee lost his case. The Employment Tribunal considered that the employee had not taken steps to protect himself from danger because the employer had offered holiday or unpaid leave but the employee had insisted that he be allowed to stay home on full pay or furlough pay.
These cases highlight the issues that can arise as workplaces begin to reopen following the easing of lockdown restrictions. Many employers will have employees who are reluctant to return to work due to safety concerns. It is unlawful to dismiss an employee or subject them to a detriment for taking steps to protect themselves in circumstances of danger which the employee reasonably believes to be serious or imminent. In this context, the reasonableness of both the employer's and the employee's actions will be relevant. The employee in case 1 succeeded because he had raised specific concerns which the employer effectively ignored. In contrast, the employee in case 2 failed because the employer had offered a solution which the employee unreasonably refused. The cases show that employers should always listen to the specific concerns raised by employees and consider potential workarounds wherever possible.
On 1 July 2021, the Government subsidy under the Coronavirus Job Retention Scheme ("CJRS") changed. Under the CJRS, employers can put staff on furlough (paid leave) for reasons related to the pandemic, provided the employee is paid at least 80% of their normal wages for any hours not worked, up to a maximum of £2,500 (prorated for any hours worked). Previously, the Government covered the 80% of wages up to the maximum £2,500. From 1 July 2021, the Government subsidy has dropped to 70% of wages (up to a maximum of £2,187.50 per month). For August and September, the Government subsidy will drop to 60% (up to a maximum of £1,875 per month).
Employers must now top up the subsidy so that employees on furlough continue to receive at least 80% of their normal wages for any hours not worked during furlough (up to a maximum of £2,500 per month). For further details of the CJRS, please see our furlough extension briefing.
The European Commission has formally approved an adequacy decision for the UK, meaning the UK's data protection regime has been deemed sufficient to protect EU personal data. This means employers will be able to continue to transfer employee data from the EU to the UK, without having to put in place additional safeguarding mechanisms. However, the adequacy decision will expire in four years, which means there will be a further review of UK laws and practices at that stage to decide if the decision should be renewed.
The Government has confirmed that it does not plan to ban "fire and rehire" practices at this stage but has also said that "nothing is off the table". The practice is sometimes used by employers to change employees' contracts where employees are not prepared to agree to those changes. It involves terminating employees' contracts and immediately offering new contracts containing the relevant changes. The Government's confirmation comes after a report by Acas, which was commissioned by the Department for Business, Energy and Industrial Strategy following calls from the Trades Union Congress to ban the practice. The Government says it has asked Acas to produce clearer guidance on when fire and rehire should be used and will continue to work with Acas on the issue.
In a joint letter, the CBI, TUC and Equality and Human Rights Commission have written to Cabinet Office minister, Michael Gove MP, calling for a clear timetable for the introduction of mandatory ethnicity pay gap reporting. A Government consultation on mandatory ethnicity pay gap reporting closed in January 2019 and the Government is yet to respond with its proposals. The Government's original proposal was that mandatory ethnicity pay gap reporting would be introduced for employers with 250 or more employees, to reflect the rules relating to gender pay gap reporting. However, the Government has not confirmed whether it plans to go ahead with these proposals or, if so, when. Employment Update will report developments.
Since the last Employment Update, our work has included: