The rescheduled UEFA Euro 2020 tournament kicks off in Rome on Friday 11 June 2021 and runs through to Sunday 11 July and many Employers may be faced with staff looking to watch their team during normal working hours.
With COVID-19 restrictions still in place across many parts of the UK and many employees still on furlough, this year’s tournament might be less impactful for UK employers, but many may still experience some difficulties as many excited football fans look to watch matches their teams are competing in.
With kick off times ranging from 2pm to 8pm, employees looking to watch matches could still phone in sick or worse, they might simply not turn up, and this could have serious implications for employers already struggling to get back to normal after enduring more than a year of COVID-19 restrictions.
To help Employers better understand the risks and equip them with tools to better manage the situation and create a positive outcome for both employer and employee, we’ve outlined below a few keys points Employers should consider.
Potential Issues Employers Might Face
Unauthorised absence
Staff being drunk / under the influence of alcohol at work
Inappropriate conduct by employees – discrimination, racism, bullying or harassment
Increases in holiday requests from both football and non-football fans alike
Ways Employers Could Avoid Issues
1. Ensure You Have Clear Policies in place including:
Sickness & Absence Policy
Code of Conduct
Discipline & Grievance Policy
Bullying & Harassment Policy
Drugs & Alcohol Policy
Equality & Diversity Policy
2. Manage absenteeism in advance.
Make it clear to employees that absences without authorisation will not be paid and may lead to action under the Disciplinary Policy.
Utilise Return to Work Interviews to identify and address fake sickness absence or absent resulting from post-match hangovers
3. Reconsider Your Holiday Arrangements
Relax caps on the number of employees that are allowed to be on holiday at one time
Where staff have indicated they want to see certain matches, encourage them to take the time off as annual leave.
Remember non-football fans may make holidays requests during the same period and so you will need to ensure you treat all holiday requests fairly and equally. Granting a holiday request by a male employee but refusing a holiday request from a female employee could trigger a claim of sex discrimination!
4. Some Other Things to Consider
Screening matches in a meeting room or communal area.
Relaxing your Internet Policy and allow employees to stream matches on their PCs.
You will need to ensure you have the appropriate licenses in place which allow screening or streaming of live TV within the workplace.
From 1st April 2021, national minimum wage rates increased but April sees a number of further changes to Employment Laws from 4 April 2021.
On 1 April 2021, we highlighted the changes to the National Minimum Wage Rates last week, but there are a number of further changes which come into effect from 4 April 2021 including, changes to statutory sick pay, statutory family leave pay, Employment Tribunal compensation awards and rates and IR35 legislation.
Statutory Family Leave
From 4 April 2021, the weekly rates of statutory family leave (maternity/paternity leave, etc.) increased by 77p per week, from £151.20 per week to £151.97 per week.
Statutory Sick Pay
From 6 April 2021, the weekly rates for Statutory Sick Pay increase from £95.85 per week to £96.35 per week. The lower earnings limit in relation to eligibility to statutory payments is to stay the same at £120 per week.
ET Compensation Awards and Rates
From 6 April 2021, employment tribunal compensation rates are to increase. The maximum week’s pay for redundancy pay purposes will increase from £538 to £544. This is important for the purposes of tribunal claims because it means that the maximum statutory redundancy pay, as well as unfair dismissal basic award pay, will both now be £16,320. The unfair dismissal compensatory award, which is set to compensate the claimant for past and future lost attributed to the dismissal, is a maximum of 52 weeks’ pay, subject to a new maximum of £89,493.
The maximum amount of additional award for unfair dismissal, set to compensate claimants when employers fail to adhere to a tribunal instruction to re-engage them, taking into account average weekly earnings, will rise to £28,288.
IR35 Legislation
The IR35 legislation, which aims to ensure that contractors are paying the appropriate amount of tax, is also changing for some private sector businesses. Currently, most contractors are required to determine their own status as employee or contractor; however, from 6 April 2021, this liability will pass to medium and large-sector clients. Smaller clients will be exempt from this obligation, and the contractor remains liable for determining their own tax status.
From 1st April 2021, national minimum wage rates increase and the National Living Wage age threshold reduces.
The new national minimum wage hourly rates, which come into effect from 1 April 2021 are as follows:
Workers aged 23 and over (National Living Wage) – £8.91
Workers aged 21-22 – £8.36
Development rates for workers aged 18–20 – £6.56
Young workers rate for workers aged 16–17 – £4.62
Apprentices under 19, or over 19 and in first year of the apprenticeship – £4.30.
And don’t forget…..the National Living Wage (NLW) threshold is also lowering to include all those aged 23 and over. Currently, the NLW is payable only to people who were aged 25 and over.
After losing it’s lengthy Supreme Court battle just less than one month ago, Uber have announced it will give its 70,000 UK drivers a guaranteed minimum wage, holiday pay and pensions.
Last month we confirmed Uber’s lengthy legal battle to overturn the 2016 Employment Tribunal (ET) decision had finally came to an end when the Supreme Court unanimously ruled against them and concluded drivers should be classed as workers, not independent third-party contractors – https://employmentlawservices.com/uber-loses-landmark-supreme-court-battle-over-workers-rights/
In the weeks following the Supreme Court’s ruling, Uber have carefully considered their position and announced yesterday that it will give its 70,000 UK drivers guaranteed minimum wage, holiday pay and pensions. The taxi company confirmed that all drivers can expect to earn at least the National Living Wage for over-25s, irrespective of age, after accepting a trip request and after expenses, that they will be entitled to paid holiday based on 12.07% of their earnings, which will be paid on a fortnightly basis, that they will also be enrolled into a pension plan automatically, with contributions from Uber, that they will continue to receive free insurance in case of sickness or injury as well as parental payments, which have been in place for all drivers since 2018 and retain the freedom to choose if, when and where they drive.
It will be interesting to see if Uber will extend this decision to its food delivery business, Uber Eats, which remains unaffected by this decision.
The Supreme Court ruling in this case was always going to have far-reaching implications for millions of people working in the gig economy and the companies that employee them, but only time will tell whether other employers operating in the gig economy will follow Uber’s lead.
In his Spring 2021 Budget, the Chancellor announced that the Coronavirus Job Retention Scheme (CJRS) will be extended for a further five months from May until the end of September 2021.
Chancellor Rishi Sunak said the scheme – which pays 80% of employees’ wages for the hours they cannot work in the pandemic – would help millions through “the challenging months ahead”.
Key Highlights Announced by the Chancellor
Employees will continue to receive 80% of their current salary for hours not worked.
There will be no employer contributions beyond National Insurance contributions (NICs) and pensions required in April, May and June.
From July, the government will introduce an employer contribution towards the cost of unworked hours. This will be 10% in July and 20% in August and September.
For periods ending on or before 30 April 2021, employers can claim for employees if they were employed on or before 30 October 2020, as long as they have made a PAYE Real Time Information (RTI) submission to HMRC between 20 March 2020 and 30 October 2020. This may differ if employees were made redundant, or they stopped working for the employer on or after 23 September 2020 and were then re-employed by the employer.
For periods on or after 1 May 2021, employers can claim for employees if they were employed on 2 March 2021, as long as they have made a PAYE Real Time Information (RTI) submission to HMRC between 20 March 2020 and 2 March 2021.
Do employers need to enter into fresh furlough agreements with employees from 1 May 2021?
As a result of the CJRS being extended to 30 September 2021, there will be several potential scenarios for Employers to consider, including:
An employee who was already furloughed before 30 April 2021 under an agreement without an end date.
An employee who was not already furloughed under the CJRS.
An employee who was already furloughed before 30 April 2021 under an agreement without an end date
Where an employee was furloughed under a written furlough agreement entered into before 31 October 2020 which remains in force, it may be possible for the previous furlough arrangement to simply continue after that date.
The requirements of a valid furlough agreement under the fifth Treasury direction are the same as previously under the third Treasury direction (see paragraph 7.1, fifth Treasury direction) and at this time there is no requirement for the agreement to be entered into on or after 1 November 2020. The only requirement is that it is entered into before the period to which the claim relates (paragraph 7(c)(i)). Assuming the eligible employer and qualifying employee requirements continue to be met (which also remain substantially the same under the fifth Treasury direction, see paragraphs 4 and 6), it may be possible for furlough to continue under a previous furlough agreement.
However, it is likely that some amendment will be required to most furlough agreements in order for the arrangement to continue after 30 April 2021.
An employee who was not already furloughed under the CJRS
As the employee was not furloughed previously, the employer should enter into a detailed furlough agreement with the employee and the employee should be asked to sign and return the agreement to confirm their agreement to be furloughed in accordance with the terms of the CJRS. This could be done electronically.
The agreement should be made before the CJRS period to which it relates starts.
What About Self-Employed Workers?
The Chancellor announced that the Self-Employment Income Support Scheme (SEISS) is also being extended with a fourth grant covering the period February to April 2021 and a fifth and final grant covering May to September 2021.
There will be temporary continuation of tax exemptions for COVID-19 tests and home office expenses, and of the Statutory Sick Pay (SSP) Rebate Scheme while sickness levels remain high.
In a recent survey 23% of employers said they plan to require staff to be vaccinated, but can employers impose a mandatory vaccination requirement on their employees?
The Law on Mandatory Vaccinations
Although current legislation (the Public Health (Control of Disease) Act 1984 and the Coronavirus Act 2020), already gives the UK Government and devolved Administrations the power to make regulations to prevent, protect against, control or provide a public health response to the incidence or spread of infection or contamination, there is no legislation to mandate COVID-19 vaccinations and the Health Secretary, Matt Hancock, has stated that the government is not considering introducing legislation to make vaccinations compulsory.
So, Can Employers Require Employees to be Vaccinated?
In the absence of it becoming a legal requirement an employer cannot force an employee to be vaccinated without their consent. Vaccination without consent could amount to the criminal offences of assault.
An employer considering imposing a mandatory vaccination requirement, or treating employees or job applicants differently because of their vaccination status, should consider the following:
Vaccination is not suitable for everyone.
Requiring an employee to be vaccinated without their consent as a condition to providing work could amount to a repudiatory breach of contract, entitling them to claim constructive dismissal.
There are potential reasons where a mandatory requirement to be vaccinated could be indirectly discriminatory against certain protected characteristics and a breach of Article 8 of the European Convention on Human Rights.
Currently, private vaccination is not available. All individuals must wait their turn, in order of priority, to be offered vaccination. Allowing only vaccinated employees to return to the workplace could potentially lead to indirect or direct age discrimination claims by younger employees, although both direct and indirect age discrimination can be justified.
A vaccination requirement may be difficult to justify on health and safety grounds. Although vaccination reduces the chance of the vaccinated individual becoming ill, the extent to which vaccination reduces transmission is still under review. Although the Guide for healthcare workers states that it is likely that vaccinated healthcare workers will be less likely to pass on infection as the viral shedding period will be shortened. Further, it is not yet known how long protection from vaccination will last. The current advice is clear that vaccination is not a substitute for workplace COVID-secure measures which must continue to be complied with.
Imposing a mandatory vacation requirement could result in negative publicity for the employer which could have a detrimental impact on business profitability, employee retention and recruitment.
There is a very small risk that vaccination could have long-term adverse side effects for some individuals. A cautious employer may also be concerned about the risk of an employee having an adverse reaction to the vaccine. An employee who was compelled to obtain the vaccine and who suffers an adverse reaction, may attempt to bring personal injury proceedings against the employer. For information on potential waivers in this respect.
Consultation with workplace and health and safety representatives, and with trade unions, is likely to be required.
There are data protection implications of requiring employees to provide information on their vaccination status, verifying its accuracy, and retaining that data.
In theory, an employer could decide to prevent unvaccinated employees from entering the workplace or restrict their duties. This could in turn adversely impact an unvaccinated employee’s pay. Preventing an employee from coming to work risks leaving the employer in breach of contract and could give rise to claims of constructive dismissal if the employee resigns in response or is dismissed.
The Acas guidance advises that employers should support staff in getting the vaccine but cannot force them to be vaccinated. However, it acknowledges that it may be necessary to make vaccination mandatory where it is necessary for someone to do their job, for example where they travel overseas and need to be vaccinated.
Alternatives to Mandatory Vaccination
Employers considering alternatives to mandatory vaccination may prefer to encourage voluntary vaccination within their workforces as an alternative to mandatory vaccinations. Taking advantage of the information currently available on the potential advantages and disadvantages of vaccination, Employers could communicate this to staff to assist them in making an informed decision. Doing so would be in accordance with an employers’ duty of care and obligation to take reasonable steps to provide a safe workplace and safe system of work.
Additional alternative measures employers should consider include:
regular testing for frontline staff (only available in England – https://www.gov.uk/get-workplace-coronavirus-tests);
regular health and safety reviews to ensure that the employer is up to date with, and properly implementing, the COVID-secure guidelines for its particular industry.
allowing employees to work from home, where possible; or
temporarily changing employee roles or responsibilities to minimise the workplace risk as far as possible.
Uber has lost its battle in the Supreme Court over drivers’ rights – a decision that could have far-reaching implications for millions of people working in the gig economy.
Back in November 2017 we reported that the Employment Appeal Tribunal (EAT) rejected taxi firm Uber’s attempt to overturn the 2016 Employment Tribunal (ET) ruling that two drivers who were employed as gig-economy contractors by Uber should have been classed as ‘workers’ under the Employment Rights Act 1996, not as self-employed. At the time, Uber made it clear that they intended to appeal and after failing to overturn the EAT’s decision at the Court of Appeal, the case was heard by the Supreme Court on 21 and 22 July 2020.
Supreme Court Judgement in the Uber Case
On 19 February 2021, Uber’s lengthy legal battle to overturn the 2016 Employment Tribunal (ET) decision finally came to an end when the Supreme Court issued its Judgement. The UK’s highest court unanimously ruled against Uber and concluded drivers should be classed as workers, not independent third-party contractors, which means they are entitled to basic employment protections, including minimum wage and holiday pay.
In the 42-page Judgement, the court rejected Uber’s argument that it merely acted akin to a booking agent for drivers, noting that the company would have no means of performing its contractual obligations to passengers (nor complying with its regulatory obligations as a licensed private hire vehicle operator) — “without either employees or subcontractors to perform driving services for it”.
Implications the Supreme Court Judgement Will Have for Other Employers
The Supreme Court’s judgement is likely to cause massive implications as other companies with large self-employed workforces may now face very similar action, particularly companies like Deliveroo and UberEats who engage drivers to deliver food. It is expected that organisations who have adopted a similar model to Uber will now discover that they owe a substantial amount more to their workers, such as paid annual leave, national minimum wage and sick pay.
Understanding Employment Status
An increase of atypical contracts has effectively blurred the lines between self-employed and employed status and so employers should be very careful when entering into any sort of working relationships. A basic explanation of each status/category is as follows:
Employee: Under section 230(1) of the Employment Rights Act 1996 (ERA 1996) an employee is defined as “an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment”. Under section 230(2) of ERA 1996, a contract of employment means “a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing”.
Worker: A worker is defined under section 230(3) of ERA 1996 as an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment; or any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.
Self-Employed: A person is self-employed if they run their business for themselves and take responsibility for its success or failure and they aren’t paid through PAYE.
Significance of Making the Correct Distinction
The distinction between the three categories is significant for a number of different reasons, including the following:
1) Employers and employees have obligations that are implied into the contract between them (for example, the mutual duty of trust and confidence). Some core legal protections only apply to employees, most particularly the rights on termination of employment granted under ERA 1996 (the right not to be unfairly dismissed and the right to receive a statutory redundancy payment). As mentioned above (see Worker status), workers enjoy limited protection under employment law.
2) Only employees are covered by the Acas Code of Practice on Disciplinary and Grievance Procedures
3) Only employees will be automatically transferred to any purchaser of their employer’s business under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246).
4) The tax and social security treatment of a person providing services depends on their status.
5) An employer is vicariously liable for acts done by an employee in the course of their employment. This vicarious liability is unlikely to extend to independent contractors or self-employed individuals.
6) An employer is required to take out employer’s liability insurance to cover the risk of employees injuring themselves at work. Self-employed individuals or independent contractors may not, in every case, be covered by this insurance and may want to consider entering into appropriate insurance for their own benefit.
7) Employers owe employees statutory duties relating to health and safety. Independent contractors may not be covered under these duties although they will be covered under the employer’s common law duty of care in respect of occupier’s liability.
Employees, workers and self-employed workers enjoy a variety of different legal entitlements, and since many of these rights form the basis of the employment status, the consequences of getting an individual’s employment status wrong should not be underestimated.
We have collated here the key information relating to the recently extended CJRS (furlough scheme) that is intended as general guidance. If you require specific legal advice, please book your Free consultation call with one of our team of employment law specialists.
The Extended (CJRS) Furlough Scheme
With the introduction of new, tougher lockdown restrictions across the United Kingdom forcing many more business to close, many Employers will again be looking to take advantage of the Extended (CJRS) Furlough Scheme.
Below, we consider how the extended (CJRS) furlough scheme changed on 1 November and 1 December 2020.
How the (CJRS) Changed on 1 November and 1 December 2020
Since 1 November 2020, employers have been able to furlough employees on a flexible basis if they were on their PAYE payroll before midnight on 30 October 2020. The employer must have made a PAYE RTI submission to HMRC between 20 March 2020 and 30 October 2020, notifying a payment of earnings for any employee being claimed for. Neither the employer nor the employee needs to have used the CJRS previously.
The level of support available under the extended scheme, which currently runs until 30 April 2021, will initially mirror that available under the CJRS in August, with the government paying 80% of wages for hours not worked up to a cap of £2,500 per month for claim periods running to 31 January 2021.
The grant and cap will be reduced in proportion to the hours not worked by an employee. Employers will need to cover employer NICs and employer pension contributions on all amounts paid to an employee (including those amounts covered by the CJRS grants). They will also need to continue to pay an employee for hours worked in the normal way. As previously under the CJRS, employers are still able to choose to top up employee wages above the scheme grant at their own expense if they wish.
The government will review the operation of the CJRS in January 2021, to determine whether the economic circumstances are such that employers should be asked to contribute more.
Since 1 December 2020, employees under notice are no longer eligible and from February 2021, HMRC will also start to publish information about employers who submit claims in December and January, in order to provide greater transparency and deter fraud.
The JSS has been postponed as a result of the extension of the CJRS. It is not currently known whether it will be introduced after the CJRS ends. The JRB was withdrawn by the fifth Treasury direction following the extension of the CJRS.
HMRC published updated guidance regarding the extended CJRS on 10 November 2020, and the fifth Treasury direction on 13 November 2020 (dated 12 November 2020). Guidance for claim periods from February 2021 onwards, as well as a further Treasury direction, have not yet been published.
Here we provide more detailed Guidance on the Extended (CJRS) Furlough Scheme.
Advice & Guidance for Employers & Employees
The COVID-19 lockdown restrictions continue to present numerous and complex challenges for Employers and Employees alike. If you are experiencing challenges and require specialists advice, book a free consultation with our team of employment law specialists.
Following today’s announcements by the UK Government and Scottish Administration, we consider the workplace issues in connection with the increased COVID-19 restrictions, including the impact on non-essential offices.
What About Non-Essential Offices?
In short, a move to stricter Level 4++ restrictions should NOT impose any new restrictions that prevent non-essential offices from continuing to operate as they have been or prohibit those staff that have been attending work from commuting to work.
The default position from the Scottish administration has always remained that non-essential offices should remain closed and that staff should work from home where possible, but there is nothing in the legislation (original or recent) that requires non-essential offices and/or manufactures to close OR which restricts the movement of people either within or between different tier areas in the same way that Part 3, Regulation 5 of the now revoked Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 set out the restrictions on movement which, in the early phases of lockdown, meant people could not leave their homes unless they were a key worker, an essential worker or otherwise had a valid reason to.
However, Schedule 5 of the latest legislation, which sets out in detail the Level 4 restrictions lists which types of businesses are required to shut, makes no reference whatsoever to non-essential offices, therefore, provided you have undertaken the appropriate H&S risk assessment and introduced all necessary controls and measures to protect your staff, there is no requirement to shut non-essential offices.
What Issues Might Employers Face if Level 4 Restrictions Are Imposed?
Many of the issues facing employers as they stare down the barrel of further lockdown restrictions will be similar to those they faced when the impact of the COVID-19 pandemic started to impact on peoples’ lives and work back in March this year.
The immediate issue for employers of business workplaces that are not being specifically required to close is whether they should close voluntarily, in full or in part. The fact that the Furlough scheme has been extended to the end of March 2021 means this is a viable option and one that would enable them to retain staff for however long the stricter lockdown restrictions remain in place.
However, if closing the workplace isn’t an option, other issues employers may face include the following:
Staff either being or living with a “clinically extremely vulnerable’ or ‘clinically vulnerable’ person.
Childcare issues and staff claiming they can’t return to work because schools are closed.
Staff simply being extremely anxious about the risk posed by COVID-19 and frightened of a return to the office.
Staff expressing concerns relating to health & safety and what they perceive to be the employer’s failure to follow government guidance.
The appropriate approach employers should take will depend on the specific reasons set out by each employee, but employers will need to proceed with caution to avoid the risk of possible claims at the Employment Tribunal.
This evening Prime Minister Boris Johnson addressed the nation to confirm tougher lockdown restrictions will be introduced across England with effect from midnight 4 January 2021, suggesting England could “steadily” move out of the national lockdown from mid-February.
Tougher Lockdown Restrictions in England
Most areas of England are already subject to strict tier 4 restrictions but despite this, COVID infections have continued to rise at an alarming rate with 58,784 new cases of the virus having been recorded today (Monday 4 January 2021).
The Prime Minister’s announcement this evening follows a similar announcement by Scotland’s First Minister, during which she confirmed tougher lockdown restrictions being introduced across Scotland from midnight on 4 January 2021.
Key Changes to Lockdown Restrictions in England
Whereas local restrictions applied in England previously, these new, tougher restrictions will apply nationally across the whole of England.
It will now be a legal requirement to stay at home and not leave home except for essential purposes, such as shopping for basic necessities (as infrequently as possible), to undertake exercise alone or with members of your household only for a medical need to provide care or help a vulnerable person, or to travel to and from work, only if absolutely necessary and only if you are unable to work from home.
Clinically extremely vulnerable people should begin shielding again and those not able to work from home should not go into work at all.
Primary and secondary Schools will be closed to the majority of pupils from 5 January 2021, except for vulnerable children and those of key workers, and will move to remote learning only. Exams have been cancelled.
In making his announcement, the Prime Minister confirmed that the whole of the UK must now move to COVID Alert Level 5 “meaning that if action is not taken, NHS capacity may be overwhelmed within 21 days”.
Citizens across the United Kingdom are again being told to:
What About Restrictions Wales and Northern Ireland?
Wales imposed level 4 restrictions on 20 December 2020 and Scotland and Northern Ireland imposed tier 4 lockdown restrictions from midnight on 26 December 2020, but despite these restrictions COVID infections have continued to rise at an alarming rate with 54,990 new cases of the virus having been recorded on Sunday 3 January 2021. With the rest of the UK now subjected to even tougher lockdown restrictions similar to those introduced on 23 March 2020, it looks very likely that Wales and Northern Ireland will also introduce further restrictions and the respective administrations are meeting this evening to discuss the ongoing situation to decide what steps they will take.
From Darkness to Light – The Roll Out of the COVID-19 Vaccine
The newly approved coronavirus vaccine created by Oxford University and AstraZeneca is being rolled out across the UK today and the Prime Minister said that “if things go well”, the government expects to have offered a first vaccine dose to everyone in the four top priority groups in England by mid-February. This includes vaccinating all residents in a care home for older adults and their carers, everyone over the age of 70 and all frontline health and social care workers. The Scottish government has said it is “on track” to vaccinate everyone eligible in the first wave by spring 2021.
Support from Employment Law Services (ELS)
Advice & Guidance for Employers & Employees
The COVID-19 lockdown restrictions continue to present numerous and complex challenges for Employers and Employees alike. If you are experiencing challenges and require specialists advice, book a free consultation with our team of employment law specialists.
Advice on Settlement Agreements
Employment Tribunal Representation
Covid-19 Employment Claims
