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Employment Winter Newsletter 2021
2021 Round up
2021 began with the UK in the depths of a winter lockdown, but with hope on the horizon as the Covid-19 vaccination programme started to roll out.
Throughout the pandemic, there has been much commentary about how life would not go back to normal as such, but to a so-called "new normal". As the year draws to a close, we are beginning to see what that "new normal" might look like when it comes to our working lives.
Most employers implemented remote working during much of 2020/21, in many cases for the entire workforce, and few seem to be returning to pre-pandemic style full office working. Whilst some have remained fully remote, many are introducing permanent hybrid working, and we have prepared hybrid working policies for a number of clients this year. We have also produced a hybrid working checklist summarising the issues to consider.
Many employers have seen an increase in flexible working applications as a result of the pandemic, and we have advised on how to handle these requests fairly. While employers are currently dealing with these applications under their existing flexible working policies, those policies may have to change in future depending on the outcome of the current government consultation on flexible working.
Some of our clients had employees who, having returned to their home country during the pandemic, decided they wanted to work remotely from abroad on a permanent basis, and we have advised on the employment law, immigration, tax and social security implications of this, and have also advised on policies covering working from abroad intermittently. We discussed these issues in our webinar on "Remote working abroad".
We have also worked with clients to review their post-termination restrictive covenants to ensure they are still effective for new remote working or overseas working arrangements. At the beginning of this year, we responded to the Government consultation on non-competes, and included in our feedback the views of our clients from our covenants survey. The key findings from that survey can be seen on our LinkedIn page.
As employers began planning for their office re-opening in spring and summer, we advised our clients on Covid safe measures and how to ensure employees felt comfortable about returning. We also explored these considerations in our webinar on "Workplace reopening".
Vaccination take-up within the workforce can affect how confident staff feel about being back in the office. We have advised clients on a variety of approaches from staff surveys to (in a few cases) mandatory vaccination policies. We discussed the legal issues around vaccination and testing policies in our webinar on Covid-19 Developments earlier this year.
The end of the furlough scheme in September saw fewer redundancies than anticipated, and many employers are now facing the opposite problem, with labour shortages across a variety of sectors. Employers are taking a range of steps to increase recruitment and retention, including pay rises and upskilling staff, and we have worked with clients to review apprenticeship contracts and training agreements.
Recruitment and retention can be improved in part by having a positive and open workplace culture. Culture issues have come under the spotlight this year, with news of employees airing complaints about working conditions (e.g. the #AppleToo movement). In the financial services sector, the FCA continues to emphasise the importance of a healthy open culture.
Whistleblowing or "speak up" policies and training are a key part of fostering an open culture, and we have worked with a number of clients on their "speak up" programmes and also provided training for managers and staff. We have seen an increase in whistleblowing complaints and employee grievances, and as a result we have carried out a considerable amount of work advising employers on investigations throughout this year, in particular on the practical steps to take to ensure the process is independent, transparent and thorough.
We have seen a marked uptick in employers appointing independent investigators, and this year we have carried out a number of investigations in relation to a range of matters including bullying, harassment, sexual misconduct and wider workplace culture issues.
Diversity has featured highly on the HR agenda for many companies in 2021, and we have conducted a number of diversity training sessions for our clients' managers and staff, and also advised on other measures to improve workplace diversity including equal opportunities monitoring and analysis, diversity and pay reporting, and anti-discrimination policies and statements. We discussed these initiatives in our webinar on Diversity Matters. We have also worked with clients to draft or enhance their family friendly policies.
We advised many clients on implementing the new off-payroll rules which came into effect in April this year, including the practicalities of determining the employment status of their contractors, as well as drafting contractual changes relating to consultancy arrangements. We discussed the new rules in detail in our Off-Payroll Rules webinar.
In the financial services sector, we have worked with our investment firm clients who will be required to implement the Investment Firms Prudential Regime (IFPR) in 2022, drafting malus and clawback provisions to apply to bonus arrangements.
We have worked on a range of international projects this year, including global Covid policies, multi-jurisdiction diversity monitoring programmes, and cross-border acquisitions. We also hosted an interesting virtual international round table on Covid vaccination policies. Our international projects involved us working with employment law experts in over 20 jurisdictions.
2021 also saw cases on a variety of topics including:
Business immigration round up
The Brexit transition period ended on 31 December 2020 and the new UK points-based immigration regime was extended to newly arriving EU citizens from 1 January 2021. We have advised a number of clients on recruitment of EU citizens, including assisting with sponsor licences and sponsored work visa applications. In our webinar earlier this year on "Post-Brexit immigration – the new points based system" we looked at the some of the key implications and considerations for employers under the new system. Further changes to the system are expected next year, with new Global Business Mobility and scale-up visa routes due to be launched from Spring 2022.
EU citizens who arrived in the UK by 11pm on 31 December 2020 had to apply for EU settlement scheme status by the deadline of 30 June 2021. New right to work rules were then introduced from 1 July 2021, with newly recruited EU nationals no longer able to rely on EU passports or ID cards to evidence their right to work. We have been working with clients to assist with EU settlement scheme applications as well as assisting with right to work issues.
During the pandemic, employers carrying out right to work checks have been able to check documents virtually, instead of having to complete in-person checks using original documents. This temporary concession which has been in place since 30 March 2020 is currently set to end on 5 April 2022. New guidance is then expected to be issued by 6 April 2022 and it is possible that permanent changes to the right to work checking regime will be introduced to make it possible for more right to work documents to be checked virtually.
Brexit has made business travel between the UK and Europe more complex now that EU free movement rules no longer apply to EU nationals visiting the UK or to UK nationals visiting the EU. EU citizens wishing to visit the UK on business will need to comply with the UK business visitor rules including ensuring their proposed activities fit within the range of permitted activities. Similarly, UK citizens visiting EU countries need to meet individual country requirements. We have produced an interactive map showing the different rules for all of the EU states.
Coming up in 2022
- Workplace culture, whistleblowing and investigations policies – likely continued increase in employee complaints and grievances, and an increasing focus by regulators and shareholders on ESG issues including employment matters.
- Hybrid/flexible working – employers will need to see how hybrid working arrangements work in the longer term following the pandemic, and there may be changes to the flexible working regime following the government consultation.
- Diversity and sexual harassment – a new code of practice on sexual harassment is to be published in due course, and many employers are reviewing and refreshing diversity initiatives which were placed on hold during the pandemic, and a number of businesses are reviewing their ethnicity pay gap figures in preparation for reporting on this to be introduced at some stage in the future.
- Recruitment and retention – many employers will be looking at measures to improve recruitment and retention including recruitment from abroad to work remotely, increased focus on training and upskilling, and the potential for using sponsored immigration visas.
- Employment contracts and employment status– some employers are reviewing restrictive covenants to reflect remote working and working abroad, employers who use contractors are advised to consider an annual review of their contractors' status from 2022 onwards, to ensure that they are still applying the correct tax treatment.
- Associates Sarah Laing and Harry Wade joined the employment team this year after completing their training contracts with the firm.
- We held a mock Employment Tribunal event this autumn (our first in-person event since before the pandemic), with a judge and counsel from 11KBW chambers. Senior Counsel Ailie Murray was our Claimant, and Associate Chris Wilkinson took the part of her former manager. Ailie was delighted that her claims of unfair dismissal and sex discrimination (connected with furlough and home schooling) were successful.
- Our team was involved in a variety of pro bono work this year, including advising at employment law clinics and assisting charities, including Refugees At Home, Human Rights Watch, Giving Time and Freedom Charity, on employment matters.
- We produced webinars, podcasts and briefings on a variety of topics including hybrid/remote working, diversity, the off-payroll rules, and immigration post-Brexit. These can all be found on our website here.
- We also launched our International Employment Law podcast series, starting with Germany, Ireland, Sweden and France. The podcasts are available here, and we will cover more countries in 2022, so watch this space. You can also listen and download on Apple and Spotify.
- We wrote a variety of articles for the HR and employment law press including these pieces on returning to work, whistleblowing, and shared parental leave.
- We are planning an extensive programme of updates for next year beginning with a series of webinars looking at key developments in 2021 and themes for 2022 – look out for these in January.
- Our team saw three weddings and a baby this year! Hanna Bates-Martens, Clare Skinner and Sarah Baker were all thrilled that they were finally able to get married in 2021 having previously had to postpone their weddings due to the pandemic, and Zoe Dearmer had a baby girl this spring, who has already made several visits to the office, much to the delight of the team!