March 12, 2020

COVID-19 UK: Employment update - Top 5 recent workplace developments

This is our selection of the recent developments which we think will have the most significant impact on HR practice.

1. Coronavirus

With the Coronavirus situation rapidly evolving, UK employers are becoming increasingly aware that they need to be prepared to handle the situation however it develops. This could involve anything from requiring staff to self-isolate when returning from the rapidly expanding list of affected areas, to forced closure of workplace for an indefinite period. Key recent developments following the March Budget and government announcements include:

1. There will be a temporary change to the eligibility requirements for statutory sick pay (SSP).  This will mean that SSP must be paid from the first day of sickness absence rather than having to wait, as at present, for the first three qualifying days in any period of work for people who have COVID-19 or have to self‑isolate in accordance with government guidelines.

2. SSP will be temporarily extended to cover:

  • individuals who are unable to work because they have been advised to self-isolate by a medical practitioner (even if they are not ill)
  • people caring for those within the same household who display COVID-19 symptoms and have been told to self-isolate.

3. Small and medium sized businesses with fewer than 250 employees will be able to reclaim the cost of paying COVID-19 related SSP for up to two weeks per employee.

4. The government has issued guidance to employers advising them to use their discretion not to require a GP fit note for COVID-19 related absences, but to keep records of staff absences. There will also be a temporary alternative to the fit note in the coming weeks which can be used for the duration of the COVID-19 outbreak. This system will enable people who are advised to self-isolate to obtain a notification via NHS111 which they can use as evidence for absence from work, where necessary.

Practical points

One of the key questions employers are asking is whether and what to pay staff when they stay at home due to coronavirus.  Some of the information in the media is confusing and contradictory and the answer depends on the circumstances.  This includes, where the employee is self-isolating, who (whether the employer or the medical practitioner) is telling the employee to self-isolate.  Read our latest update here for a summary of the position.  

For further information see:

Budget Report (March 2020)

Government Guidance - COVID-19: guidance for employers and businesses

ACAS Advice for employers and employees

2. Immigration – A new UK points-based system

The Government has published a policy statement setting out its proposals for a new UK immigration points-based system (PBS) that will apply from 1 January 2021, following the end of free movement between the UK and EU. The changes to the immigration system are significant as they will impact on how UK employers can recruit both EU and non-EU citizens, who will be treated equally under the new system.

In most cases, employers will need a Sponsors' Licence to employ EU Nationals. But sponsorship will not be required for those holding Global Talent visas or visas to be granted under a prospective, capped category applicable to the highest skilled candidates ineligible under the Global Talent category.  To meet the minimum points threshold, applicants must achieve at least 70 points across a variety of flexible sub-categories which include a job offer from an approved Sponsor, meeting the minimum skills and salary thresholds, English language eligibility, a PhD in certain circumstances and designated Shortage Occupations.

Practical point

While the new PBS will make it easier to recruit non-UK Nationals for skilled roles, with the end of Freedom of Movement, employers will face an administrative process and significant additional costs (including the Immigration Skills Charge and Immigration Health Surcharge) when employing EU Nationals.  That said, access to the UK Labour Market for skilled roles will remain accessible.

Given that it is less than ten months until the new system is in force, employers - particularly those that are reliant on lower-skilled workers from the EU - should consider putting contingency plans in place to mitigate the risk of not being able to recruit staff as easily from 2021.

The UK Government’s proposals for a new points based system (PBS) - FAQs 

The UK's points-based immigration system: policy statement

3. IR35 - Government confirms the new off-payroll working rules (IR35) will come into force on 6 April 2020 and updates the HMRC Employment Status Manual

The Government has confirmed in a recently published report that the extension of the off-payroll working rules to the private sector will go ahead as planned from 6 April 2020.  In an effort to help smooth the transition as the reforms are brought in, the government has announced some measures to help businesses affected by the changes and the HMRC Employment Status Manual guidance has been updated.

The key measures include:

  • The new rules will now only apply to payments made for services provided by a contractor on or after 6 April 2020
  • Businesses will not have to pay penalties for inaccuracies relating to off-payroll in the first year, except in cases of deliberate non-compliance
  • HMRC has confirmed their previous commitment that information resulting from changes to the rules will not be used to open new investigations into workers' intermediaries (such as their Personal Service Companies (PSC)) for tax years prior to 6 April 2020, unless there is reason to suspect fraud or criminal behaviour. This is intended to provide reassurance that a change in status as a result of the reforms will not result in HMRC opening an historic tax enquiry
  • There will be a new legal obligation on clients to respond to a request for information about their size from the agency or worker. This will provide the certainty workers and other parties in the contractual chain need to understand whether the off payroll working rules apply
  • Wholly overseas client organisations with no presence in the UK are excluded from having to consider the off-payroll working rules
  • Draft guidance on the reforms and clarifications have been provided by HMRC on some issues:
    • if after going through the client’s status determination process, a contractor still disagrees with the client’s determination and they consider they have been taxed incorrectly as a result, the existing Self-Assessment and National Insurance processes can be followed by the contractor
    • clarification has been provided on the meaning of what would amount to taking 'reasonable care' in making status determinations. HMRC expects clients to make a correct and complete determination, and keep sufficient records to show how the decision was reached. It lists examples of what behaviours might indicate 'reasonable care' (including using its Check Employment Status for Tax (CEST) tool for determining employment status and seeking advice from a qualified, professional advisor). It also lists matters that might not indicate that "reasonable care" has been taken, such as making blanket determinations, inputting inaccurate information into CEST and failing to take into account all the relevant evidence. It would appear from the guidance that clients may sub-contract the Status Determination Statement process but the client will not be taking reasonable care if it does not effectively take ownership of the decision by confirming the accuracy of the conclusion and the reasons for it.

Practical point

Whilst we still await the final rules, businesses should continue to prepare for the new rules coming into force next month. If you would like help or guidance to get your business prepared, please speak to your usual contact at Clyde & Co.

Review of changes to the off-payroll working rules: report and conclusions

Updated draft HMRC Employment status Manual guidance

4. Disability must have "long-term effect" at the time of the alleged discrimination (EAT)

The Employment Appeal Tribunal (EAT) has confirmed that in order to claim disability discrimination, a claimant must show that their condition had a "long-term effect" at the time that the alleged discrimination.

Mrs Tennant worked as a checkout manager for Tesco. She was off sick with depression for extended periods of time from September 2016. She brought a claim of disability discrimination a year later, alleging that she was discriminated against between September 2016 and September 2017.

Mrs Tennant said that her depression amounted to a disability, i.e. that it was an impairment which had a substantial and long-term adverse effect on her ability to carry out day-to-day activities. An effect is considered ‘long term’ if it has lasted 12 months, is likely to last for 12 months or is likely to last for the rest of that person’s life. At a hearing held to decide whether Mrs Tennant was disabled, the employment judge decided that Mrs Tennant's depression was an impairment that had had an adverse effect from 6 September 2016. Given that she was still suffering from depression 12 months later, the tribunal found that she was disabled. Tesco appealed.

The EAT decided that, at the time of the allegedly discriminatory acts that Mrs Tennant complained about, her impairment and the adverse effects of it had not yet lasted for at least 12 months, and there was no evidence before the tribunal that it was likely to last for 12 months. This meant she was not disabled at the time when the acts she complained of happened and she could not continue with her disability discrimination claim.

Practical point

This decision is a useful reminder for HR that in order to succeed in a disability discrimination claim, an employee must be able to demonstrate that they were disabled at the time of the alleged discriminatory acts. Sometimes this is a point that gets overlooked, particularly where a condition is having ongoing effects.

That said, organisations should still proceed with care when faced with an employee who has a condition that could potentially be considered a disability. If the employee can demonstrate that their condition is likely to last for a period of 12 months, even if it has not yet done so, then they may still be disabled. There are also some conditions that automatically amount to a disability, such as cancer and HIV.

Tesco Stores Ltd v Tennant UKEAT/0167/19/00

5. Employer is not liable for damage to whistleblower's reputation caused by trying to set the record straight (Court of Appeal)

The Court of Appeal ruled that an employee suffered a detriment when his former employer made inaccurate rebuttals of his whistleblowing allegations, but that the detriment was not because of his protected disclosures.

Mr Jesudason, a consultant surgeon, made complaints to the Trust and subsequently made a further disclosure to the Trust, regulatory bodies and the media, alleging clinical misjudgements. When the relationship between Mr Jesudason, his colleagues and the Trust deteriorated further, he resigned and entered a settlement agreement under which he discontinued court proceedings against the Trust. However, he continued to make allegations to third parties which prompted the Trust to make statements rebutting those allegations.

Mr Jesudason brought a tribunal claim alleging that the Trust's statements, which incorrectly stated that his allegations were "completely without foundation", constituted a detriment on the grounds of his protected disclosures. His claim was rejected by the Tribunal and EAT.

The Court of Appeal said that a detrimental observation about a whistleblower will be a detriment, regardless of the employer's motive - and ruled that Mr Jesudason had clearly suffered a detriment. That said, the Court concluded that the detriment was not on the grounds of any protected disclosures. So even though the Trust's statements contained some misleading information which constituted a detriment to him, it did not mean that the reason for making those statements was that Mr Jesudason had made the protected disclosure.

Practical point

Where a whistleblower has made disclosures to the media or regulatory bodies, the employer won't necessarily be liable under the whistleblowing legislation if it seeks to set the record straight and responds in kind, even if the rebuttal may damage the employee's reputation.

An employee may be able to rely on detriments that occur after a settlement agreement is signed, on the basis of protected disclosures that were made before that agreement.

Jesudason v Alder Hey Children's NHS Foundation Trust