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Employment Winter Newsletter 2020

Employment Winter Newsletter 2020


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2020 round up

2020 has been a year of extensive challenges – we are incredibly appreciative of our strong relationships with our clients and would like to thank all of our clients for their continued support throughout 2020.

The year began with the UK leaving the EU on 31 January, and just a few weeks later, our lives at home and at work became dominated by Covid-19. In March, when many employers were having urgently to consider redundancies or layoffs, the Coronavirus Job Retention Scheme (CJRS) was created, allowing staff to be furloughed on 80% pay. Along with our clients, we faced a steep learning curve to get to grips with the new scheme and how it would work in practice, and interact with existing employment rights such as holiday and family leave. The CJRS was set to run until 31 October but has been extended to 30 April 2021. We answer the commonly asked questions on the scheme in our furlough extension briefing note.

Despite the CJRS, many employers have still had to make redundancies, and more are likely to do so, especially once the extended CJRS comes to an end. Much of our work this year has consisted of advice on redundancies, including large scale collective redundancies, and we have produced a series of four short podcasts recapping the rules and key practical considerations around both individual and collective redundancies.

During 2020, employee health and safety issues featured on the HR agenda in several ways.

At the beginning of the spring lockdown, whole offices moved to home working in a very short space of time, and most employees who can work from home are still doing so. Employers had to work quickly to ensure that employees had the physical equipment they needed, and also adapt ways of working so that staff could remain productive and continue to feel connected with their colleagues.

Supporting employees has been a particularly important consideration, given the potential impact of the pandemic on mental well-being, when employees may feel isolated, especially if they are not physically going into work. With the Government currently recommending home working where possible until at least spring 2021, and with some employees intending to work remotely on a more permanent basis, home working issues will continue to be relevant for some time to come. We explored these issues in our home working webinar series.

Businesses have had to adapt their premises and operations to create Covid-secure workplaces, and consider issues around employee safety and how to reassure employees when they return to work. There may be particular concerns to address depending on employees' own individual circumstances such as whether they have existing health conditions, or care for a vulnerable relative. We discussed practical steps for employers in our Covid-19: returning to work webinar earlier this year.

The pandemic led to an increase in whistleblowing complaints in 2020, according to a report by Protect, the whistleblowing charity, mainly about furlough fraud and Covid health and safety issues. In our practice, we have seen an increase both in reports through whistleblowing/speak up channels, and in individual employee grievances. As a result we have done a considerable amount of work advising employers on investigations, including on the challenges of carrying them out remotely. We discussed these challenges, and solutions to them, in our recent webinar on remote investigations.

Aside from Covid-related issues, diversity has been under the spotlight in 2020. The #BlackLivesMatter protests this summer have led to many employers taking a fresh look at their approach to diversity and inclusion at work, and how it can be improved, and we have conducted a number of remote diversity training sessions for our clients. We have also seen an increase in employers considering more detailed equal opportunities monitoring and analysis and have advised on how to conduct this effectively.

In a move aimed at increasing competition and creating conditions for new jobs, to help the economy recover from the effects of the pandemic, the Government is consulting on major reforms to post termination non-compete covenants. The two alternative proposals are (i) require employers to pay ex-employees during the period of a non-compete restriction or (ii) ban non-compete covenants altogether. We will be asking our clients and contacts for their views, in a survey to be circulated in the new year, so watch this space.

2020 also saw cases on a variety of topics including disciplinary procedures, unfair dismissal, redundancy, settlement of claims and confidentiality, restrictive covenants, TUPE and changing terms and religion and belief discrimination. We discuss some of these cases in more detail in our 2020 key cases podcast series.

Our team has worked on a variety of international projects this year, including multi-jurisdiction redundancy programmes and cross-border acquisitions, involving countries across the globe. We have advised clients on requests from employees to work permanently from a different country and the consequential employment, tax and social security implications. We have also participated in a number of virtual international employment law forums, which have been able to involve a wider range of countries due to being held remotely.

Business immigration round up

The agreed transition period commenced following Brexit on 31 January 2020 and runs until 31 December 2020.  During the transition period free movement rules remain in place between the UK and the EU but from 1 January 2021 onwards a new UK points-based immigration regime will apply to newly arriving EU citizens (see below).  Similarly, UK nationals will also become subject to different entry requirements when travelling to the EU from 1 January 2021. Please see our briefing note on the implications of the changes for business travel between the UK and the EU here.

The new points-based immigration regime opened on 1 December 2020 to replace the existing employer-sponsored visa routes. A new 'Skilled worker' route has replaced the Tier 2 (General) and a new 'Intra company transfer' route has replaced the Tier 2 (Intra company transfer). Please see our briefing note or view our recent webinar on the new immigration regime.

Since the initial national lockdown in March, various measures have been introduced by UK Visas and Immigration (UKVI) to address the immigration implications of the closure of visa application centres and borders around the world – see here for the latest on the UKVI measures and our briefing note here. The mandatory self-isolation or quarantine rules have also created issues for business travellers due to a requirement to self-isolate on entering the UK unless arriving from a designated 'travel corridor' country or covered by one of the narrow exemptions (such as the exemptions for cross-border workers or high value senior executives). See here for the latest on the travel restrictions and exemptions.


Coming up in 2021...

Key themes:

  • The future of work - how will workplace culture, employee engagement and workplace utilisation change and adapt given the impact of the Covid-19 pandemic? We plan to engage with our clients on all these topics.

  • Speak up / whistleblowing - anticipated uptick in whistleblowing complaints and investigations and increased focus on whistleblowing compliance and training programmes.

Legal changes:

  • 1 January - employers wishing to sponsor the visas of non-UK new hires will have to use the new points-based immigration regime. The new regime also covers EU nationals arriving in the UK from 1 January 2021 who will need work visas.

  • 31 March - deadline for financial services firms to certify existing employees as fit and proper under SMCR (extended from 9 December 2020).

  • 4 April - deadline for employers with 250 or more employees to publish their gender pay gap reports for pay year 2019/2020 (reporting was suspended this year due to the pandemic).

  • 6 April - the "off payroll" rules will require employers to assess whether their contractors who work through personal services companies are covered by IR35, and tax payments accordingly

For more information click here.

Our news
  • Alex Fisher became the fifth partner in the employment team on 1 July. Congratulations to Alex.

  • Associates Hanna Bates-Martens, Shani Edwards and Tom Hunt joined the team after completing their training contracts with the firm.

  • Our team was involved in a variety of pro bono work this year, including advising at employment law clinics in conjunction with City Law School and working with charities Underexposed Arts, Giving Time and Foundervine on employment matters.

  • We contributed the UK law chapter of the Kluwer international Labour and Employment Compliance Handbook.

  • We produced webinars, podcasts and briefings on a variety of topics including furlough, home working, redundancies, investigations, the "off payroll" rules and Brexit/immigration. These can all be found on our website here. We are grateful to our clients and contacts for engaging with these materials and for their positive feedback.

  • We are planning an extensive programme of updates for 2021 and engagement with future of work issues, beginning with a series of webinars on forthcoming developments – look out for these in January.



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