It is that time of the year when we take time out to consider recent and upcoming employment legislation together with the implications of recent Employment Tribunal (ET) decisions. We hope that you find this summary useful and if you wish to attend our 6 monthly FREE employment law breakfast updates, which we hope to recommence once the country has fully emerged from the current lockdown restrictions, then please register by emailing us at: info@kelburn.com

 

Introduction of this legislation was postponed last year owing to the COVID-19 Pandemic, but our experience of talking to Employers in recent months is that they are no more ready for its introduction now than they were 12 months ago. Nevertheless, it becomes law next month from which time every Employer must make PAYE and NI deductions from workers who provide their services via their own limited company (PSC) unless the Employer has completed a full assessment of the Employer / Worker relationship and the worker has been determined as being genuinely self-employed.

 

Every instance of engagement with a PSC worker, including those supplied via a recruitment agency, needs to be determined on its own merits. The assessment is a complex process which should consider any evidence of Supervision, Direction OR Control, and can only be completed by the Employer (not an intermediary in the supply chain). For more information regarding this important, and from we can see widely misunderstood, legislation please see our November newsletter at https://www.kelburn.com/newsletter/view/22/off-payroll-working-2021.aspx

 

Reporting of the 2019/20 period was suspended last year but the 2020/21 period, which should be based on a snapshot as at 5^th April 2020, has not. Every employer with more than 250 employees on the payroll is required to report and where the pay gap calculations are significantly affected as a result of placing employees on furlough, it is worth considering including an explanation for the changes in the narrative.

 

As widely reported, Uber lost its appeal in the Supreme Court last month, and Uber drivers are now considered “workers” (not self-employed) with entitlements to such things as NMW, holiday pay and sick pay. Uber themselves will undoubtedly be considering how to deal with any potential back claim of earnings, which will likely be substantial. The importance of this decision cannot be over emphasised and although it does not necessarily follow that all so called “gig economy” workers will be likewise affected; the writing is now on the wall in block capitals. Meanwhile it will be interesting to see to what extent the impending floatation of Deliveroo, who also has a high exposure to gig workers, will be affected.

 

Another recent decision in the Supreme Court has accepted the argument that the predominately female Asda retail employees can use the predominately male depot workers as a valid comparator in their demand for equal pay. This ongoing case will now revert to the Employment Tribunal to decide whether discrimination has actually occurred, so watch this space for what could be an expensive decision for big-box stores.

 

This interesting race discrimination case, relating to a dismissal in 2017, is a timely reminder for employers of the need to go beyond the simple publication of staff policies, even when supported by initial awareness training. In this instance, although an equal opportunity policy was in place and employees had received equality and diversity training in 2015, the argument that all reasonable steps had been taken failed on the basis that refresher training had not been provided. This principle can presumably be applied to all essential staff training and employers are recommended to review what refresher training (if any) is in place for their people.

 

As the roll out of the COVID-19 vaccination continues across the country at breath taking speed, employers are now considering whether they can, or should, insist that their employees are vaccinated. This is an emerging debate and at present the legal consensus that I have seen is that an employer can not enforce vaccinations on employees. There are fundamental issues concerning civil liberties and the fact that some workers are medically advised not to have the vaccination that need to be considered. However, with some care homes pressing staff to accept vaccinations and some airline carriers suggesting that passengers will need to be vaccinated before travelling, it will be interesting to see how the debate evolves.

 

With effect from 1^st April 2021 the Low Pay Commission recommended increases will come into force and the new scale of rates are:

Age 23 or over : £8.91 (NLW rate)

Age 21 to 22 : £8.36

Age 18 to 20 : £6.56

Age 16 – 17 : £4.62

Apprentice : £4.30

 

That said, I continue to see little evidence that employers actively look to the lower band rates, other than for apprentice staff, when considering pay rises for their general workforce and would be interested to know to what extent you make use of them. Answers on a post card please.