Employment Law – the 5 key elements for 2021 that any ambitious business needs to know!

The last 12 months has presented us with many challenges for our businesses, and as a result of these challenges, a lot of Employment Law has changed, or been updated to help us address the challenges that Covid19 has presented us with.

If you have an HR team, then they should be on top of this for you, but if you haven’t, then here’s where we can help! Employment law is constantly on the move and we keep track of the latest employment law changes so you don’t have to. Have a read of the TOP 5 Employment Law topics that you need to be aware of :

1.Worker status

The Supreme Court decision in Uber B.V. v Aslam confirmed that the Uber workers are in fact employees – yikes!

What this means is that drivers should be paid the National Minimum Wage (NWM) and accrue holiday entitlement for any period they are working. In the Uber case this was found to be for the entire period they are logged on to the app and willing and able to accept passenger journeys. As well as the apparent monopoly Uber had in the market at the time, the Court was persuaded by the level of control exercised by Uber over each of its drivers.

So, if you are using freelancers of any kind, now is the time to do your due diligence and that doesn’t just mean, “I’ve got a freelancer agreement so its OK!”, you may need expert help to determine whether your freelancers are really workers or employees in disguise. No one wants HMRC dropping by and finding that your freelancers are in fact employees and having to repay any Employers NI that you owe HMRC!

2.COVID-19 – rapid workplace testing

You can order free rapid lateral flow tests to test your employees twice a week if you have 10 or more employees.

Employers may register to order rapid lateral flow tests in order to test employees with no coronavirus symptoms if the business is registered in England, employs 10 or more employees and those employees cannot work from home.

From early April you’ll be able to order tests for your employees to collect from their workplace and use at home twice a week. You can do this if you cannot provide testing in the workplace.

You must register by 11:59pm on 12 April 2021. If your business is closed or you cannot provide tests now, you should still register so you can order tests in the future. For more information go to; https://www.gov.uk/get-workplace-coronavirus-tests

3.Employees working from home but overseas

In light of the significant increase in homeworking brought about by the pandemic, employers have seen a rise in requests from employees to work remotely in another country. Having an employee based abroad can pose practical challenges for an employer including time differences, internet and broadband issues, how to achieve effective line management and who will cover the cost of the employee’s return to the UK, should this be needed.

In addition to these day-to-day issues, there are also significant legal and tax implications when an employee lives and works overseas. Employers should treat requests carefully, as granting an employee the right to work from another country can entail significant risk as outlined below. These issues are highly dependent on the jurisdiction to which the employee requests to move. Employers should also take care to handle requests to work from home outside of the UK as consistently and fairly as possible to avoid any potential discrimination issues. You may also wish to consider introducing a working from home policy if this is likely to represent an ongoing issue for your organisation.

  • Tax, pensions and social security liabilities
  • Risk of permanent establishment in the overseas country
  • Local employment rights and obligations attaching
  • Immigration consequences
  • Data protection and
  • Regulatory implications.

4.Right to work checks

Following the introduction of the new immigration system, employers should continue to carry out right to work checks on all new recruits using a three-stage process of obtaining, checking and copying relevant identity documents and recording the date the check was conducted. There are temporary changes in place to facilitate right to work checks during COVID-19 when people should be “working from home” and not visiting a workplace.

Until 30 June 2021, when conducting right to work checks in respect of EU, EEA or Swiss nationals, employers must ensure they obtain the individual’s passport or national identity card, or if the individual has been granted permission under the EU Settlement Scheme, they can share evidence of right to work using an online service.

From 1 July 2021 onwards, the individual must either provide proof of permission under the EU Settlement Scheme, or if they arrived in the UK on or after 1 January 2021, they must provide a visa and any other necessary ID documentation.

There is currently no requirement for retrospective checks to be undertaken on EU, EEA or Swiss nationals who were employed on or before 30 June 2021. Employers should also be aware of the risk of discrimination which may occur if an individual is required to provide proof of settled status before 30 June 2021. The government has not yet issued its new right to work guidance, which will apply from 1 July 2021 onwards.

5.Harassment

An Employment Appeals Tribunal (EAT) has held that an employer could not rely on “stale” equality and diversity training as a defence to show it had taken all reasonable steps to prevent racial harassment. (Allay (UK) Ltd v Gehlen)

The employer had an equal opportunity policy and an anti-bullying and harassment procedure and had carried out both equality and diversity and bullying and harassment training for employees and managers two years and 8 months before the Claimant’s dismissal. However, the EAT concluded that whatever training there had been, was no longer effective as racist comments were made regularly to the Claimant, passed off as “banter”, and managers took no action even though they were aware of the comments being made.

The EAT emphasised that merely having an equal opportunity policy and carrying out brief insubstantial training is insufficient. Employers should ensure they carry out equality training on a regular basis and if there is reason to believe that employees have forgotten the training, it should be refreshed.

Our next Zoominar on Friday 21st May will take you through our round up of the latest and most important employment law changes to come into practice this April, so why not book your seat here; 

https://merakihr.com/events/zoominar-employment-law-update/

If you want any HR Expert help to navigate any of these areas of employment law or support you in managing any employee issues your business may be facing, then please get in touch or book a call with me or Rachel here;

Book a Call with Emma Browning

Book a call with Rachel Sherson