Key changes to right-to-work checks coming into force on 6 April 2022

There are a number of key changes to right-to-work checks coming into force on 6 April 2022, which we will seek to explain and explore in this blog post.

What are right-to-work checks?

Freedom of movement between the UK and the EU has now ended and the UK has introduced a new immigration system. As an employer, you must check that job applicants have the legal right to work in the UK before they start their employment. The EU Settlement Scheme ended on 30 June 2021 (although applicants may still apply after this date where they have a ‘reasonable excuse’ for making the application late).

A right-to-work check is used by the Home Office to verify that workers have the right to work in the UK. Employers must check that an applicant is allowed to work in the UK before they employ them, or they could face a penalty.

Employers should carry out a compliant check before the employment commences, or could face a penalty. There is no requirement to carry out retrospective checks for staff already employed prior to 1 July 2021.

What is changing on 6th April?

From Wednesday 6th April 2022, the following changes will occur:

Migrants who have a standard work or residence permit can only be checked online, not manually. This applies to people with a biometric residence card, biometric residence permit or frontier worker permit.
Adjusted right-to-work checks will no longer count. These were always intended as a temporary concession to the pandemic but were extended several times as the coronavirus situation dragged on.
In place of the adjusted checks, a new system of digital checks is being introduced as an alternative to manual checks. This still involves people submitting “images of their personal documents” rather than bringing in the original, but using “Identity Document Validation Technology” instead of a scan or copy.

The new digital checks are aimed at British and Irish citizens. Online checks don’t work for non-migrants — i.e. the majority of workers — because they won’t show up in Home Office immigration records. If the adjusted checks had been simply abolished without being replaced, employers would have been back to checking most of their new employees manually. This new digital validation system maintains a remote alternative.

The Recruitment and Employment Confederation, which appears to have been involved in or consulted on digital checks, says the Home Office intends to charge for them: “This could vary from £1.45 to £70 per check”. It doesn’t seem that digital checks will be compulsory, so employers would be able to opt for manual checks if they begrudge the cost. This and other details should be addressed in “changes to legislation” — presumably to further amend the Immigration (Restrictions on https://www.davenportsolicitors.com/wp-admin/post-new.phpEmployment) Order 2007 — before the system is rolled out.

Broadly speaking, from 6 April 2022, right to-work-checks on most migrants will be online (and free) and checks on British or Irish nationals will be manual (and free) or digital (and maybe charged for).

For more information on the changes, view the Home Office guidance papers here.

For more details on the upcoming right to work,or any other immigration law matters, please contact one of our Immigration Law specialists here

What are the legal implications of P&O Ferries sacking 800 staff?

Have P&O ferries breached employment law?

Last week, P&O Ferries hit the headlines when they dismissed 800 employees with no prior warning.

As staff staged sit-ins on the company’s boats, with the backing of their trade unions, experts cast doubts over the legality of P&O’s plot to replace them with cheaper agency workers.  The affair could potentially cost P&O “hundreds of thousands” in unfair dismissal payouts and penalties for legal breaches, they said.

What laws have P&O potentially broken?

Employers are legally required to consult workers during a statutory notice period before making them redundant. P&O did not do this, so trade unions believe that its actions are likely to be unlawful. Additionally, employers wishing to make more than 100 redundancies must notify the business secretary at least 45 days in advance of those dismissals. A No10 spokesperson stated they were given no prior notice of this.

Failure to notify the secretary of state would be a breach of the Trade Union & Labour Relations (Consolidation) Act 1992, the TUC said.

Unions representing P&O workers have been consulting lawyers with a view to taking legal action.

Redundancy notices are being issued, with the P&O apparently having recognised the unlawfulness of its actions with comments that enhanced compensation will be paid.

Does this class as fire and rehire?

Fire and rehire is a hugely controversial method used by some companies, usually – but not always – when in dire financial straits. It involves sacking staff and then telling them they can apply for their old jobs on less favourable terms.

But what P&O is trying to do looks slightly different. Rather than rehiring staff to their old jobs, it is replacing them with agency workers and saying that sacked staff could, if they wanted, join those agencies, effectively seeking to avoid having to renegotiate terms with staff and their representatives.

Davenport Solicitors will be keeping a close eye on this case and will keep you updated on its development.

Should you wish to discuss employee dismissal, or any other employment law-related matters, with our experts, please do not hesitate to contact us here.

Calculating holiday pay correctly

How to caluculate holiday pay

Employees and workers begin to accrue holiday leave and pay as soon as they commence work. However, the terms on which an individual is engaged by an organisation, will affect how much leave, and therefore pay, they would be entitled to. In this post, we explore the topic of calculating holiday pay correctly.

Statutory Entitlement

The statutory entitlement for full-time employees is to 5.6 weeks (28 days) of holiday leave per year. Organisations may contractually offer more but cannot offer less. Should an employee join or leave a company part way through the annual leave year, their entitlement will be apportioned. For
For example, if they work 6 months of the annual leave year, they will be entitled to 50% of their leave entitlement.

However, the position calculations are different where the employee works on a part-time basis or zero-hour basis.

Part-time worker

Part-time workers holiday is apportioned in a similar way to that of a full-time employee whose employment starts or ends partway through an annual leave year. Should the part-time worker work 50% of the hours a full-time worker works, they would be entitled to 50% of the full-time annual leave entitlement.

Flexible workers

In many industries, it is inappropriate for organisations to employ individuals on a full-time, permanent contract basis. The needs of the business require more flexibility and employees are often engaged on a part-time, adaptable basis. However, this can present issues when calculating what holiday leave a worker may be entitled to compared to a full-time employee.

For example, schools may employ teachers on a zero-hour contract and not require them to work on a regular or weekly basis. This was the case in The Harpur Trust v Brazel, where a zero-hour contract teacher had been contractually entitled to 5.6 weeks’ annual leave, apportioned to reflect
the hours she worked. The school calculated her holiday pay by dividing 5.6 (the full-time entitlement) by 46.4 (the total number of weeks in a year less the 5.6 weeks) to be 12.07% of the hours worked each term. However, the employment appeal tribunal held that the method to calculated Ms Brazel’s holiday pay entitlement was to calculate the average of her normal rate of
pay over the 12 term time weeks prior to the holiday being taken using the method as stated in the Working Time Regulations.

Classification of individuals

When considering the holiday pay an individual is entitled to, it is important that businesses ensure they have classified an individual’s employment status correctly. Individuals may be engaged by a business as either an employee, worker, or a self-employed contractor. While employees and
workers are entitled to holiday pay, contractors are not. Should a business not categorise correctly, they may face an employment tribunal claim for failure to pay holiday pay.

When classifying individuals, businesses should consider how the relationship shall work on a practical day-to-day basis, as the employment tribunal shall look beyond the label given to the relationship. Factors that may indicate employee/worker status include: if the individual is required
to wear a uniform, attend work at specific times, or request holiday leave. On the other hand, if the individual raises an invoice or chooses their own working hours, this may indicate they are a self-employed contractor. The more control exercised by the business over the individual, the more likely
they are to be considered an employee/worker.

Pimlico Plumbers have been involved in an employment tribunal case for several years, brought by Mr. Smith who asserted his employment law rights as a worker, despite being regarded as self-employed by Pimlico. An employee’s/worker’s contract may state if an employee/worker does not
use their paid statutory leave entitlement, they will “lose it” and not be able to carry it over to the next annual leave year. However, where there is no such wording, employees/workers can carry up to four weeks over. As Pimlico, regarded Mr. Smith as a self-employed contractor, they did not pay
him for the leave he took, nor allow him to carry any unused leave over. By wrongly categorising Mr. Smith as self-employed, Mr. Smith’s right to paid annual leave, and to carry over leave, accumulated so that when his contract was terminated he was entitled to payment for all accrued by unpaid leave at the time of his termination.

This decision means that where individuals are incorrectly categorised as self-employed, they may be entitled to four weeks’ pay for each year of their engagement, should they be held to be employees.

How we can help

Organisations should review their engagement documents to ensure that it accurately represents the relationship between the parties. Through doing this, they will be able to identify risk exposure and consider mitigating factors, for example, the amount of leave that can be carried over is limited
to 4 weeks leave per year and you may be able to introduce a policy to reduce this.

Our team of expert employment lawyers can work with you to ensure that you are categorising individuals correctly and advise you on their holiday entitlements. Should you have concerns about the employment status of individuals you engage and would like to speak to a member of our
employment team, please contact us via email at contact@davenportsolicitors.com or telephone on 02079036888.

April 2022 Rate Changes: What Employers Need to Know

Next month, a number of rate changes are coming into play.  In this post, we explore April 2022 rate changes: what employers need to know.

April 2022 rate changes

The first of the April 2022 rate changes will take effect upon the 1st April 2022, with the increases in the national minimum wage and national living wage coming into force. The new rates are as follows:

  • For workers aged 23 and over (i.e. the National Living Wage), the rate will increase by 6.6% from £8.91 per hour to £9.50 per hour
  • Statutory Maternity Pay, Statutory Paternity Pay, Shared Parental Pay, Adoption Pay, Maternity Allowance, Statutory Parental Bereavement Pay, and Statutory Sick Pay
  • The statutory cap on a week’s pay for the purposes of calculating the basic award and statutory redundancy pay. The announcement of the new rates is expected early in 2022.

Gender Pay Gap Reporting

The deadline for gender pay gap reporting by public sector employers, private sector employers, and voluntary organisations in 2021 was put back until midnight on the 4th October 2021. However, in terms of 2022, the deadlines are anticipated to revert back to the normal timescales. Accordingly, the deadline for public sector employers to report their data is likely to be the 30th March 2022, with a snapshot date of the 31st March 2021. And for private sector employers and voluntary organisations, the deadline is likely to be the 4th April 2022, with a snapshot date of the 5th April 2021.

Employment Bill

A much-anticipated part of the 2022 employment law changes is the Employment Bill, although there is no guarantee that one will appear. If it does, then it is likely to include the following measures:-

  • The establishment of a new single enforcement body for employment rights.
  • The extension of protection against redundancy re pregnancy, maternity, adoption, and shared parental leave, including extending redundancy protection to six months post-return to work after the end of maternity leave, with similar protections afforded to those returning to work from adoption leave and shared parental leave
  • Neonatal leave and pay
  • A new right to 1 week’s unpaid leave per year for carers
  • On the 24th September 2021, the Government announced that it is to legislate in order to make it compulsory for businesses in the hospitality, services, and leisure sectors to pass on all tips to staff. The new legislation is likely to be included in the Employment Bill. The legislation will include the following:
    • (i) a legal requirement to pass on all tips to staff;
    • (ii) a new statutory code of practice setting out rules and regulations on how tips are distributed amongst staff; and
    • (iii) a right for employees to request information from their employer regarding their tipping records, and a legal right for employees to bring a claim before an employment tribunal should they believe that they are owed money relating to tips
  • A new right for workers to request a more stable contract after 26 weeks service
  • New legislation to enhance flexible working rights. The Government recently consulted on this issue, and whether to make flexible working a day 1 right, and its response is expected at some point in 2022.
  • An extension of time required to break a period of continuous service from one week to four weeks
  • New legislation making it compulsory for organisations to publish their modern slavery statements on a new government-run registry

The recent announcement on staff tips on the 24th September 2021 strongly indicates that a new Employment Bill will materialise in 2022, and therefore form part of the 2022 employment law changes.

We hope you’ve found this post on ‘April 2022 Rate Changes: What Employers Need to Know’ useful.  Should you have any questions about the changes, please do not hesitate to contact one of our employment law experts here.

COVID-19 Restrictions in the UK lifted

COVID-19 restrictions in the UK lifted

Prime Minister Boris Johnson announced on 21 February 2022, the lifting of all remaining Covid-19 restrictions in England. After two unprecedented years, such news will come as a relief to all. Such relief may be short-lived for employers, however, as many in industry argue that the stark lack of governmental regulation and guidance going forward will create a legal and health and safety limbo. In this post, we look at COVID-19 restrictions in the UK lifted – what does it mean for employers?

Living with COVID plan

The introduction of the Government’s new “Living with Covid Plan,” sees the requirement to self isolate end on 24 February 2022 as well as the testing requirements for close contacts cease. From 24 March 2022, statutory sick pay will return to normal rules, with eligibility for SSP available from the fourth day of absence. In addition, the £500 support payment for that self-isolating will also end as well as the NHS ceasing to provide free lateral flow tests. Boots are already charging £5.99 including delivery for a single test.

Without the safeguards in place that we have been used to, a mass return to work of employees will have to be managed carefully by employers to placate fears in the workforce about Covid and to manage infection levels. Without any authoritative government guidance much is going to be left to employers to use their discretion.

Secure working practices

Employers will have the knowledge of the last two years to use and build upon in order to ensure Covid-19 secure working practices. These will include things such as ensuring adequate ventilation, limiting numbers of groups, and encouraging sanitation. However, where no such laws exist employers cannot compel employees to do anything that has no legal backing. For example, they will not be able to enforce the use of masks or insist employees are vaccinated. However, Health and Safety legislation does however give employers some latitude in what they can require employees to conform to.

Safe working environments

An employer must be able to provide a safe working environment and if in the pursuit of that the employer can show that the means it requires is reasonably necessary to achieve that aim- then some practices which are no longer enshrined in law may actually be able to reasonably continue in the workplace. For example, in health care settings it may still be appropriate to enforce mask-wearing.

Of particular worry, to employers will be the end to the self-isolation rules. How will employers curb the potential for mass infection outbreaks if they have no right to stop Covid positive employees attending the workplace? This could have dramatic effects on productivity and profitability as was seen in the mass absences during the acute Omicron outbreak. Employers will have to think carefully about how they mitigate these risks, and this will require robust health and safety policies.

They may even go as far as considering contractual clauses which insist employees do not attend the workplace if Covid positive. Like with most of the pandemic much of this will be a learning exercise and employers will need to be flexible and provide dynamic responses to a changing landscape.

We hope that you have found this post on COVID-19 Restrictions in the UK lifted useful.

For support with dealing with the lifting of restrictions, drafting HR policies to protect your business, speak to a member of our Employment Law team on 02079036888 or email contact@davenportsolicitors.com

 

 

Employment law and the COVID-19 vaccine

Employment law and the covid-19 vaccine

Ikea and Wessex Water are the latest large companies to announce a pay cut in sick pay for unvaccinated workers. Employers across all sectors have faced vast staff shortages as a result of the Omicron variant. This has placed great strain on productivity and profitability and employers are looking for solutions to mitigate the damage. In this post, we look at Employment law and the COVID-19 vaccine. 

Employment law and the COVID-19 vaccine

In normal times of a downturn in the economy, cost-saving exercises tend to rely on redundancies. The challenges of the pandemic have proved more nuanced, however, as companies seek ways to now plug the short-term shortfall arising from mass absences. 

Cutting sick pay for the unvaccinated appears however to be an unprecedented move but one that is becoming increasingly common as companies try to address the pressure. 

Singling out unvaccinated workers, however, is not without risk and may not always be a proportionate or the most reasonable way of realising the bottom line.  Where companies operate a blanket policy like this then such a move may expose the Company to cases of discrimination on grounds of protected characteristics such as pregnancy or philosophical belief. 

The right of choice

The right to a private life remains a principle protected by the Human Rights Act and as long as the Covid vaccine remains unmandated people will have the right of choice. Infringing on that choice by penalising unvaccinated workers is therefore risky when that freedom of choice is protected in law. 

Employers should therefore carefully consider the reasons why employees are not vaccinated and whether those reasons fall into the categories of protected characteristics under the equality legislation. Medical exemptions are likely to be covered by the protections under disability discrimination and the very essence of freedom of choice makes a compelling argument in reliance on the protected characteristic of philosophical belief. 

It’s important to note that the sick pay cut announced by Ikea is in relation to staff who are unvaccinated and have to self-isolate because of being identified as a close contact.

Unvaccinated staff who are off work because of Covid will still continue to receive full sick pay. The risks inherent in balancing these issues have clearly been acknowledged by Ikea as evidenced by this distinction and their statement that each matter will be judged on a “case by case basis”.  Across the pond, however, far bolder moves are being made with “no jab, no job” policies now being routinely rolled out amongst major multinational corporations. 

The legality of such policies in the UK in regard to dismissals and to cuts in sick pay will ultimately remain matters to be adjudicated by the courts when inevitably challenged by employees. 

For now, employers need to be aware of the risks of discrimination claims that may arise when implementing policies relating to unvaccinated workers. 

We hope that you have found this post on Employment law and the COVID-19 vaccine useful. For help with identifying, managing, and mitigating those risks please speak to a member of our employment law team, please call 02079036888 or email contact@davenportsolicitors.com

Can Employees Refuse to Attend the Workplace Due to Their Fear of Catching COVID-19?

Can employees refuse to attend the workplace due to their fear of catching covid?

The employment tribunal has ruled in a recent case that the fear of catching Covid is not a philosophical belief for the purposes of the Equality Act 2010 and therefore, is not afforded protection from discrimination. 

Background Facts

An employee alleged that she had been discriminated against, when her employer did not pay her after she failed to turn up to work as she feared catching Covid and believed she needed to self-isolate to protect herself and others. The woman’s belief did not only stop her from attending work but also impacted on her decisions to attend other places too. 

The employee pursued a claim in the employment tribunal on the grounds that the withholding of her wages was an act of discrimination on the grounds of her belief as she had not received her salary due to her beliefs surrounding Covid. 

The Law

The Equality Act 2010 protects employees and workers from being discriminated on religious grounds which includes those who hold a philosophical belief. When considering whether a belief is afforded protection from discrimination, the employment tribunal stated that the belief must:

  1. Be genuinely held 
  2. Be a belief and not an opinion or viewpoint based on the present state of information available 
  3. Be a belief as to a weighty and substantial aspect of human life and behaviour 
  4. Attain a certain level of cogency, seriousness, cohesion and importance  
  5. Be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others 

The Employment Tribunal Decision

The employment tribunal held that the claimant’s claim failed as criteria two and three above had not been met. The judge held that her fear did not amount to a belief as it was a reaction to a threat to physical harm which was based on the present state of information, and therefore was an opinion. Therefore, the belief was not a philosophical belief and did not receive protection from the Equality Act 2010 and her employer was within their right to deduct her wages for the hours not worked. 

The Implications of This Ruling

While this case is subject to appeal, it is a clear indication of how the tribunal will view employees who attempt to use Covid as a reason not to attend the workplace. It is worth noting that at the time the facts of this matter occurred, the governments “work from home” plan had been phased out and the vaccine roll out had only just begun. 

However, this case did not consider section 44 and section 100 of the Employment Rights Act 1996 which provides employees with the right to withdraw from and refuse to return to a workplace that is unsafe and for any dismissal based on that reason to be unfair. These were likely not considered by the judge as they were not pleaded by the claimant. Claims under section 44 and 100 would require the claimant to show that the that they believed they were in serious and imminent danger and that their actions were appropriate in the circumstances with the knowledge, facilities and advice available at the time. To defend such a claim, an employer would need to show that the steps the employee took were so negligent that any reasonable employer might have treated the employee in the manner they did. 

Therefore, employers should, where possible, include employees in their discussions around the prevention of contracting the virus at work and conduct thorough risk assessments. If an employee raises a safety concern, employers should keep accurate records of their correspondence and any investigation that takes place. 

Nevertheless, it is for employers to decide where they would like their employees to work. For example, once the current work from home guidance ends, if an employee refuses to return to the office, they may be in breach of their contract for failing to work at the place of work as per their contract of employment and failing to follow reasonable instructions. So, while the employer may be able to not pay employees for the hours not worked, they may also have the right to commence internal, disciplinary, proceedings. 

How We Can Assist

If you have an employee who is raising health and safety concerns and would like to speak to a member of our employment law team, please call 02079036888 or email contact@davenportsolicitors.com

FACTSHEET: COVID-19: Impact On Sickness Absence and pay

FACTSHEET: Covid19 - impact on sickness absence and pay

The UK has recently seen the highest number of new daily cases of Covid 19. As a result, many employers have seen an increase in the number of sickness absences due to COVID19. This factsheet answers some of the most frequently asked questions about sickness absence due to covid19 and pay. 

What is statutory sickness pay and how much is it?

Statutory sick pay (SSP) is a weekly payment made to employees, who earn an average of at least £120 per week and who are too ill to work. It is payable from the employee’s fourth day of sickness absence; the first three days of absence are not covered by the scheme. The current SSP rate is £96.35 per week and is payable for up to 28 weeks. 

Can we reclaim it?

The government has announced they are reintroducing the Statutory Sick Pay Rebate Scheme for small and medium-sized employers i.e. those businesses with fewer than 250 employees. Employers will be eligible for the scheme if:

  1. They are UK based
  2. They employed fewer than 250 employees as of 30 November 2021
  3. They had a PAYE payroll system as of 30 November 2021
  4. They have already paid their employees Covid related SSP. 

Employers shall be entitled to claim the costs for up to two weeks of SSP per employee that has to take time off because of Covid-19.

This scheme takes effect from 21 December 2021.

How can Employers make a claim?

Employers will be able to make a claim through HMRC from mid-January onwards, using the following website: https://www.gov.uk/guidance/claim-back-statutory-sick-paypaid-to-your-employees-due-to-coronavirus-covid-1

Are employees who are absent from work due to Covid-19, eligible for SSP?

Employees who are not actually sick but are self-isolating following medical and/or government guidance must be paid SSP. 

Under the amended SSP regulations, the following categories of people are entitled to SSP:

  1. Anyone self-isolating for the mandatory 10-day period with Covid-19 symptoms. However, those who provide negative lateral flow tests on day six and seven of isolation will only be required to isolate for seven days instead of the full 10. 
  2. Anyone testing positive for Covid-19 following a PCR test. 
  3. Anyone self-isolating for the mandatory 10-day period due to living with or being in a linked or extended household (a “support bubble”) with someone who has symptoms or tested positive.
  4. A clinically extremely vulnerable person who is “shielding” and has a current shielding notification letter. (Note: shielding officially ended in England in September 2021).
  5. Anyone who has been officially notified that they should self-isolate under the NHS Test and Trace service and is not able to work remotely or exempt from self-isolating. Fully vaccinated individuals (who had their second vaccine more than 14 before being notified to self-isolate) do not need to self-isolate if they have been in close contact with an individual who has tested positive for Covid-19. 
  6. Anyone who is unable to work from home and has received written notification that they will be undergoing a medical procedure in hospital and has been advised to self-isolate for a period of up to 14 days before their admission. 

How can employers obtain evidence of an employee’s illness?

The normal process for employers to obtain evidence would be for all employees to self-certify themselves for the first 7 days and ask for a fit note from the GP for absences longer than seven days. 

However, due to the additional pressure, this would put on GP’s having to deal with the time dedicated to issuing fit notes the law has been changed to allow for self-certification for up to 28 days of absences which began after the 10th of December 2021 and end on or before the 26th of January 2022. Where employees have been advised to self-isolate there is an online system that they can use to provide an isolation note.

Employers who offer contractual sick pay will need to review their policy and consider whether to apply the new self-certification rules to their own policy.

Can employees request to return to work if they have financial concerns regarding being on SSP? 

It is now an offence in England for an employer to allow staff to come to work if they know an employee is required to self-isolate because they have tested positive for Covid-19 or have been notified by NHS Track and Trace. Employees and agency workers have a legal obligation to inform their employers that they are self-isolating and how long they shall be isolating for. Therefore, any request from an employee to return to work that would be contrary to medical and/or government guidance should be refused. 

Employers must remember that they have a duty of care towards their employees. 

How should employees with long term covid-19 be treated?

There is a possibility that employees who suffer from long term Covid-19 can be considered disabled for the purposes of the Equality Act. If the impact of having Covid-19 is likely to last for 12 months or more and have a significant impact on the employee’s ability to do day-to-day tasks, they are likely to be protected from unfavourable treatment as a result of having Covid-19. Employers would have a duty to make reasonable adjustments to facilitate their return to work and should proactively manage the absence, including documenting the impact it has on the business. 

Should Company policies on sickness absence and pay be amended in light of Covid-19?

Careful attention should be paid to the wording of policies that afford employees more than the statutory minimum sick pay. For example, the policy may state that employees only qualify for company sick pay when they are too sick to work. Therefore, employees who are isolating due to mild symptoms or due to being a close contact may not be eligible for company sick pay under the policy. In this instance, companies may consider amending their policy to encourage employees to comply with the medical and/or government guidance.

Employers may also want to consider discounting Covid19 related absences for attendance management systems.

Employers should treat all employees consistently to avoid potential claims and complaints.

As double vaccinated employees are exempt from self-isolating if they are identified as a close contact of a positive case, employers may want to reconsider their policy on contractual sick pay for self-isolation.

What steps do employers need to take if someone at work shows any signs of COVID-19 symptoms?

The employer should tell the employee to go home immediately.  If the employee is well enough to work from home, they will be entitled to normal pay. If they are unable to work from home, they will be entitled to SSP. 

The employer should take steps to deep clean the workplace to avoid potential spread and further infections.

If an employee has been in contact with a colleague who has Covid-19 symptoms, do they need to self-isolate?

No. They will only be legally required to self-isolate if they are officially notified under the NHS Test and Trace service that they should do so. 

Are there any payments that workers may be entitled to if they are required to self-isolate?

Some employees who are unable to work from home and are claiming certain benefits from may be entitled to a one-off payment of £500 through the Test and Trace Support Payment scheme

How we can assist

If you have any questions regarding sickness absence and pay in relation to Covid-19, our team of expert employment lawyers can answer your queries. Please contact the team via email at contact@davenportsolicitors.com or telephone on 02079036888. 

Things to Consider To Avoid Christmas Party Employment Litigation

Things to consider to avoid Christmas party employment litigation

When does an employer’s liability end?

An official and organised Christmas party is an extension of the workplace and the same rules apply. Even if the Christmas party is held away from the usual place of work, employers remain legally responsible for ensuring the event is safe and for minimising risks.

For example, an employee injured at a third-party location where the event is being hosted by no fault of their own, may have a claim for compensation against their employer. If the formal Christmas party is over, but senior management organises, in the spare of the moment, to continue drinking else were, Employers may still remain liable.

In Bellman v Northampton Recruitment Lt, the Managing Director arranged for taxis to another drinking location after the Christmas party had ended. An argument broke out resulting in a physical altercation between Mr Bellman and the Managing Director leaving Mr Bellman with serious brain damage. It was held that the Managing Director was a senior employee who had full control of his staff and the Company and therefore, the Company was liable, vicariously, for the injury. 

How can employers avoid the legal hangover?

1. Plan ahead 

There are many other religious holidays that occur in December, for example, Hanukkah and employers should try to avoid hosting events on these dates to ensure that all employees can attend, regardless of religion. 

Many actions that occur at a Christmas party that result in problems for employers are often covered by policies contained with a staff handbook, such as discrimination, harassment, substance abuse. Therefore, employers should review their documentation to ensure that they are up to date. 

2. Risk assessment

Risk assessments should include both the event and the event venue. The event venue should be examined for anything that may be risk to health and safety including unstable surfaces, loose wires and dangerous corners. As part of the risk assessment, employers may consider arranging transport to the event, providing the contact information of local taxi companies and to remind employees not to drink and drive. 

3. Consider COVID-19

With the discovery of the new variant, Omicron, and the return of mandatory face masks, employers ought to consider whether it is still appropriate to host an in-person event. Factors employers could consider are the infection rates in their local area, where the event is being held and the number of attendees. For example, if an organisation is planning an evening meal, could this be rearranged to a late lunch? Should there be one event for the whole company, or can each department host their own?  

Employers should re-iterate government guidelines and remind employees that if they display covid-19 symptoms they should arrange for a PCR test and self-isolate until they receive the results. Further, they may request employees to take and provide a negative lateral flow test in the 24 hours before the Christmas party. 

4. Reminder of standards expected

Employers may want to remind their staff ahead of the Christmas party that the event is an extension of the workplace and that their behaviour should reflect this. There should be a clear stance on excessive alcohol consumption and the use of illegal drugs. In light of the #MeToo movement, it may be wise for organisations to remind their staff about appropriate behaviour and conduct which could be considered harassment.  

The event itself is not the only time headaches can be caused. If hosted on a weeknight, Christmas parties may lead to an increased number of people calling in sick the following day. While the excuses provided can sometimes be elaborate, a hangover is not what sick leave is designed for. Staff should be made aware in advance of the Christmas party that calling in sick may be an act of misconduct and could lead to disciplinary action.

5. Be inclusive 

An employer’s duty of care extends beyond how employees behave towards one another and health and safety. The duty is wide and covers issues such as discrimination, therefore employers should ensure that the venue is accessible for all, including disabled employees and that there is a range of food and drinks provided including vegan, vegetarian and non-alcoholic drinks. 

What should an employer do if an employee acts inappropriately at the party?

Depending on the severity of the incident that occurs, it may be appropriate for the employee to face disciplinary action. As discussed above, conduct at a work-sponsored event is likely to fall within the “course of employment” and therefore can be treated as if the conduct was committed whilst at work. Employers who believe that disciplinary action is appropriate should ensure that they follow the ACAS code of conduct and, if applicable, their own disciplinary procedure often located in the Company’s staff handbook.

How can we assist?

Our expert employment Solicitors have experience drafting policies to protect employers and advising organisations who may have to take action against an employee who may have committed an act of misconduct or gross misconduct. Should you require police to be reviewed or drafted or want to discuss your concerns around hosting a Christmas party, our team can be contacted via email at contact@davenportsolicitors.com or by telephone at 02079036888.

Autumn Budget 2021: The Impact on Employment and Immigration

autumnbudgetimpactonemploymentandimmigration

The autumn 2021 budget highlights changes in both employment and immigration sectors. We shall discuss these changes below. 

Employment 

While this budget did not include any significant changes to employment law, there are some key changes to note.  

National living wage 

The national living wage is the lowest hourly amount that an individual aged 23 or over can be paid. The lower national minimum wages applies to employees under the age of 23 and apprentices. From 1 April 2022, these rates shall increase to:

  • £9.50 per hour for those over the aged 23 or over
  • £9.18 per hour for those aged 21 to 22
  • £6.83 per hour for those aged 18 – 20 
  • £4.81 for those under the age of 18 and apprentices 

With less than six months before the changes come into effect, employers should begin to consider the financial implications of these increases and ensure compliance with this change. Should employers fail to pay the correct minimum wage, they may face an employment tribunal claim from any affected employee(s). 

Health and social care levy 

As a result of the government’s increased spending and borrowing due to Covid-19, a new Health and Social Care levy has been introduced to increase the amount of tax each employee pays with the levy going to support the NHS and social care bodies. The levy will increase national insurance contributions by a 1.25% from April 2022 which shall be replaced by a new payment, separate to national insurance, of 1.25% in April 2023. 

This increase in tax will leave employers facing an increase in costs and employees with a lower take home salary. As a result, employers may receive questions regarding the benefits they provide and flexible working options. Therefore, employers should review their existing work arrangements and benefits packages to assess if they are fit for purpose, should employees request remote/flexible working. 

Immigration 

The Autumn 2021 budget confirms that the government are continuing with their plans to reform the UK’s immigration system to focus on attracting highly skilled workers to the UK. 

Scale-up visa 

With 49% of the UK’s fastest-growing businesses having at least one foreign-born co-founder and approximately 40% of all fintech employees in the UK being from overseas, the budget recognised the need for innovative businesses to have access to the talented and skilled individuals they need for their business to succeed. As a result, to attract highly skilled individuals and support inward investment, the Scale-up, will launch in the spring of 2022. In order to be eligible to apply for a scale-up visa, individuals must:

  • Pass the English proficiency requirement
  • Have a high-skilled job offer from an eligible business
  • Have been offered a salary of at least £33,000. 

Global Talent Network 

One launched, the Global Talent Network, will proactively find and bring highly skilled people to the UK who specialise in key science and technology industries. Through working with businesses and research institutions, the network will identify the skills needed in the UK and source talent from overseas to provide these skills. Initially, the network shall focus on the Bay Area and Boston in the US and Bengaluru in India. 

High Potential Individual Route 

The High Potential Individual Route will be open to individuals who have graduated from a ‘top global university’ to come to the UK. While the government has yet to confirm the institutions that will be considered a ‘top global university’, and whether the route is for certain sectors only, it has clarified that eligible individuals will not require a job offer or sponsorship from a registered employer. This route may provide a path to permanent settlement in the UK. 

Global Business Mobility Route

Appearing to combine the Intra-Company Route and the Representative of an Overseas Business route, this route is aimed at businesses with no UK presence who would like to establish themselves in the UK. Via this route, businesses will be able to:

  • Send multiple workers to the UK
  • Second workers abroad to a UK business with whom they have a high value contract of investment
  • Send employees and graduate trainees to the UK entity of an overseas company. 

Much like the current skilled worker visa, it is anticipated that this route will require employees to be monitored by the Sponsor Management System. 

How we can assist

Should you have an immigration or employment law query please contact a member of our team via email at contact@davenportsolicitors.com or telephone via 02079036888.