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Top 5 recent workplace developments

  • Market Insight 26 November 2020 26 November 2020
  • UK & Europe

  • Brexit

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

Top 5 recent workplace developments
  1. COVID-19: Extended Coronavirus Job Retention Scheme (CJRS)

The UK government has announced that the CJRS will be extended from 1 November until 31 March 2021, and will be available to all qualifying employers in the UK, regardless of whether or not their business has been closed under national or local lockdown measures.

Until at least 31 January 2021, the government will pay 80% of employees' normal pay for hours not worked, up to a cap of £2,500 (reduced in proportion to the hours not worked), while employers will pay employer National Insurance Contributions (NICs) and pension contributions.

Flexible furlough is allowed, and for employees on flexible furlough, employers should continue to pay them for hours worked, and deduct and pay the tax and NICs due on those amounts, in the normal way.

Employers can claim the grant for the hours that their employees are not working, calculated by reference to their usual hours worked in a claim period.

Practical point

The amount of the government’s grant per furloughed employee may change after 31 January 2021, depending on the outcome of the government’s review in January.

For the time being, the previously announced Job Support Scheme and Job Retention Bonus will not go ahead as planned, but a retention incentive will be deployed at the appropriate time.

For further details, see our Q&A on the UK’s extended furlough scheme

  1. Brexit – Immigration changes

From 1 January 2021, if employers want to hire anyone from outside the UK, including from the EU, they must be a Home Office licenced Sponsor.

From 1 December 2020, the Tier 2 General route will close and all applications to employ non-EEA nationals, including Tier 2 General extensions, will be assessed under the new Sponsored Skilled Workers (SSW) framework. Sponsors’ Notes will be required for Certificates of Sponsorships assigned prior to 1 December in support of applications submitted after 1 December 2020.

From 1 January 2021, Sponsors will be able to submit applications to employ EEA nationals under the SSW framework.

Practical point

While the coronavirus pandemic has had a significant impact on businesses’ ability to prepare for the Brexit transition, those that employ overseas nationals must ensure they are prepared for the implementation of the new immigration system.

For more information on how UK companies can prepare for this, see our November 2020 Immigration bulletin.

  1. Data protection – Subject access requests (SARs)

Following a consultation, the Information Commissioner's Office (ICO) has published detailed guidance on responding to SARs.

The key areas covered by the guidance include:

What amounts to a "manifestly excessive" SAR: The employer must determine whether the SAR is “clearly or obviously unreasonable”. This involves assessing whether the response required is “proportionate when balanced with the burden or costs involved”. All the circumstances must be taken into account, including: the nature of the information, the context of the request, whether not complying with the SAR could cause substantive damage to the employee, the employer's available resources, etc.

What is a "reasonable fee" for complying with a manifestly excessive or unfounded SAR:
In addition to photocopying and printing costs etc, employers can take into account administrative costs related to assessing, locating and copying the information, and communicating with the employee.

Stopping the clock when clarification of the SAR is required:
Potentially, employers can "stop the clock" on the one month time limit for compliance with a SAR, if clarification is "genuinely required" and the organisation processes a large volume of information about that employee. Whether you hold a large amount of information about an individual will, to an extent, depend on the size of the organisation and the resources available. The volume of information held may be less of an issue for a large organisation which has significant dedicated resources available to respond to SARs.

Practical point

The guidance does not alter the existing law but provides clarification for employers on how to deal with SARs, as well as helpful examples.

  1. Age discrimination: pay progression

The Court of Appeal has ruled that reducing staff costs to balance the employer's books could constitute a legitimate aim capable of justifying indirect age discrimination.

In 2010, in response to the government's austerity programme, the probation service introduced a pay policy which resulted in a significant slowing of pay progression. This had a disproportionate impact on younger employees who would take much longer to reach the top of the pay band than older and more experienced employees.

In these circumstances, the policy will constitute unlawful indirect discrimination unless the employer can objectively justify the policy by showing it to be a proportionate means of achieving a legitimate aim.

Broadly, the position has been that the saving of costs on its own is not a legitimate aim capable of providing the basis of a justification defence in an indirect discrimination claim, but it may be where the aim described by the employer also involves elements other than cost.

The Court of Appeal held that the need to reduce staff costs to balance the probation service's books during a public sector pay freeze was a legitimate aim capable of justifying indirect age discrimination. The Court found that the tribunal had been right to draw a distinction between an employer that is merely trying to save costs and one that needs to reduce staffing costs so as to "live within its means". This did not conflict with the rule that discrimination cannot be justified where the reason is solely in order to save costs. In addition, the Court found that when considering proportionality, the tribunal was entitled to take account of the fact that the pay policy was introduced as a temporary measure.

Practical point

This decision confirms that in indirect discrimination claims, while employers seeking to show justification may not rely solely on saving costs as a legitimate aim, they may rely on the need to reduce expenditure (and specifically their staff costs) in order to balance their books. If the cost reduction measures are temporary, this may also assist in establishing that the means of achieving the legitimate aim were proportionate.

Heskett v Secretary of State for Justice

  1. Health and safety – Protection of workers

The High Court has ruled that the UK government failed to implement EU law properly, by restricting health and safety protections to employees.

The Independent Workers’ Union of Great Britain brought an application for judicial review, seeking a declaration that the UK had failed properly to implement into national law two EU Directives. While these directives require EU member states to confer protections on workers, the implementing UK legislation covers only employees.

The High Court found that the UK has failed to implement the EU directives into UK law properly, such that:

•      all workers should have the right not to be subjected to a detriment for leaving or refusing to come to work in circumstances where they have a reasonable belief they or others are in “serious and imminent danger”

•      suitable PPE is provided to all workers who may be exposed to a risk to their health or safety at work, except where such risk is adequately controlled by other effective means.

Practical point

This decision potentially gives all workers protection from detriment on health and safety grounds, including where they leave work or refuse to come into work due to a reasonable belief of serious and imminent danger, and in relation to the provision of suitable PPE. The Covid-19 pandemic has given these protections particular significance.

The effect of this judgment is that the UK government needs to amend domestic legislation so that workers benefit from these protections in the same way as employees. That said, public sector workers can in any event enforce these EU directives directly against their employer in the UK courts.

IWGB v Secretary of State for Work and Pensions


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