HR Newsletter - Issue 6
In this edition, we will be focusing on Brexit and how the end of the transition period on 31st December 2020 may impact employers in the UK.
The countdown to Exit Day has begun, leaving commentators, specialists, and employers wondering how leaving the EU may affect employment law and what the implications will be for employers.
In this edition, we will also be covering:
Legal Update #1 – Brexit: the end of the transition period
A large proportion of employment law in the UK derives from the EU. Especially law governing collective consultation, discrimination, transfer of undertakings (‘TUPE’), parental leave and working time regulations.
When the UK left the EU on 31 January 2020, the UK entered a transition period, meaning that all EU law continued to apply in exactly the same way. That transition period ends on 31 December 2020. At this point, all EU law will be converted into domestic law (if it has not already been converted) and will be in place unless or until the government decides to amend or repeal the relevant domestic legislation.
There is also a chance that the UK will be obliged to implement certain EU law as part of a trade deal reached between the EU and the UK.
Freedom of movement
If the UK does not reach a deal with the EU before the end of the transition period, freedom of movement will cease on 31st December 2020. This would mean that any UK nationals working in the EU will have to abide by EU rules and the rules of the individual member state. The same would apply to EU nationals working in the UK.
EU citizens who have lived in the UK for 5 years at the end of the transition period can apply for settled status to remain in the UK indefinitely. Additionally, EU citizens who have lived in the UK for less than 5 years at the end of the transition period can apply for pre-settled status until they can acquire settled status. These applications must be made by 30 June 2021. If family members join EU citizens in the UK, they must make their application at least three months after their arrival, or by 30 June 2021 (whichever is the later).
If EU citizens fail to obtain settled status by 30 June 2021, they will be classed as "illegal immigrants" and face removal from the UK.
Employers should prepare for this in advance by identifying any of their employees who are UK nationals working in the EU or EU nationals working in the UK and considering their immigration status.
Immigration
Any EU citizens living in the UK after the 31st December 2020 who have not applied for settled or pre-settled status will be allowed to stay for three months without a visa, but will have to apply for a visa during this period if they wish to remain in the UK for a longer period of time.
There will be a new points-based system from 1 January 2021. The system will treat EU and non-EU citizens equally, focusing on skilled workers. Most individuals will need sponsorship from their employers as a sponsorship requirement will apply to the Skilled Worker and Student routes into the UK. Sponsors will need to show that that they are filling a genuine vacancy, but it is not currently clear how this will be assessed.
The guidance published by the government in February 2020 stated that no low-skilled or temporary work route into the UK will be introduced.
Discrimination law
We do not expect to see any significant changes to the law governing discrimination in the UK when the transition period ends. This is because the Equality Act 2010, implementing the UK’s laws against discrimination, is domestic legislation. Nevertheless, although any major changes are unlikely, it has been suggested by some commentators that a cap could be placed on discrimination compensation in a similar way as it already is for unfair dismissal.
Parental leave and pay
Currently, rights to parental and family related leave in the UK derive from a mixture of EU and UK rights. UK maternity leave and pay precede EU rights and are more generous in many respects. For example, under EU law, women are entitled to 14 weeks paid maternity leave. By contrast, in the UK, they are entitled to a more generous 39 weeks.
The relatively new rights to shared parental leave and the right to request flexible working are purely domestic in origin. Due to this, although some critics may consider these rights to be a burden on business, there seems little political appetite for their repeal or for them be watered down.
TUPE
Most commentators believe that any major changes are unlikely to TUPE provisions. However, following Brexit, some small changes could be made to make it more business friendly.
For instance, it has been predicted that rules on consultation will be relaxed to bring them in line with redundancy collective consultation obligations. This would mean that businesses would only be required to consult where at least 20 or more employees are being transferred, as opposed to the current position of 1 or more.
Commentators have also suggested that rules on harmonisation of terms and conditions after a transfer may be relaxed.
Holidays and working time
We believe that a wholesale repeal of the Working Time Regulations 1998 (‘WTR’) is unlikely as many rights that it contains are now ingrained within the UK, such as the right to statutory paid holiday.
However, the government may wish to amend the following aspects of the regulations:
It has also been suggested by commentators that the rule in the case of Tyco may be abolished. In this case, the ECJ found that where workers travel around all day, and don’t have a fixed place of work, their travel time from home to their first location and from their last location to their home is working time under the WTR. This is likely to be brought in line with other UK commuting law which provides that commuting to and from work is not considered working time.
Collective redundancy consultation
Back in 2013, we saw some changes to the minimum time limit for starting collective redundancy consultation where an employer proposes to dismiss 100 or more employees. The time limit was reduced from 90 days of consultation to 45 days.
As a result, the obligation to collectively consult isn’t particularly onerous and I think we could expect trade unions to fight hard against any attempts to remove it all together.
What we may see is a watering down of collective consultation obligations, especially as employees arguably don’t seem particularly concerned about these rights. On the other hand, businesses don’t seem be of the position that collective consultation obligations are a burden that needs amending. On this basis, it isn’t clear whether collective consultation will be particularly high on the political agenda. However, some commentators believe we may see the relaxation of collective consultation rules so that only very large companies that don’t have trade unions will need to comply with them.
Following Brexit, the UK will no longer be subject to the EU rules on European Works Councils. And so, after the end of the transition period, we may see the removal of collective consultation obligations with Works Councils. However, the government has issued guidance stating that businesses are encouraged to continue to allow UK workers to be represented on European Works Councils on a voluntary basis.
Legal Update #2 - Extension of the Furlough Scheme to April 2021
The Chancellor, Rishi Sunak, announced last month that the Furlough Scheme will be extended across the UK until 31 March 2021. He later announced on the 17 December 2020 that the Scheme will be extended by a further month to 30 April 2021, with the government continuing to pay 80% of wages. On this basis, the government’s contribution will not reduce in January like many expected.
What level of support will the extended scheme provide to employers?
Can shielding employees, employees with caring responsibilities, and those on sick leave be furloughed?
What restrictions will be placed on employees who are furloughed?
As under the Furlough Scheme previously, during ‘furloughed hours’, employees cannot do any work for their employer that makes money or provides services for their employer or any organisation linked or associated with their employer.
Employees can:
Employer – employee agreement requirements
Employers should discuss with their staff and make any changes to the employment contract by agreement.
To be eligible for the grant, employers must have confirmed to their employee (or reached collective agreement with a trade union) in writing that they have been furloughed or flexibly furloughed.
Employers must:
The employee does not have to provide a written response.
Where consistent with employment law, any flexible furlough or furlough agreement made retrospectively that has effect from 1 November 2020 will be valid for the purposes of a CJRS claim. Only retrospective agreements put in place up to and including the 13 November 2020 may be relied on for the purposes of a CJRS claim.
What will this mean for other Coronavirus Job Schemes?
The launch of the Job Support Scheme has been postponed because of national developments related to the coronavirus pandemic.
The Job Retention Bonus (JRB) will not be paid in February 2021 as the purpose of the JRB was to encourage employers to keep people in work until the end of January. However, as the Furlough Scheme is now being extended to 30 April 2021, the policy intent of the JRB no longer applies.
Employers will not be able to claim back notice periods under the Furlough Scheme from 1 December 2020
From 1 December 2020, an employer cannot claim under the Furlough Scheme for any days on or after 1 December during which a furloughed employee is serving contractual or statutory notice. This is the case even for employees who have resigned or retired.
You should bear this in mind if you are considering redundancies. It is unclear if further guidance will be published on this issue. We will keep you updated.
New timescales for submitting a furlough claim
Claims have to be submitted within two weeks of the end of the previous calendar month unless there is a “reasonable excuse for failing to make a claim in time”.
Claim for furlough days in |
Claim must be submitted by |
November 2020 |
14 December 2020 |
December 2020 |
14 January 2021 |
January 2021 |
15 February 2021 |
February 2021 |
15 March 2021 |
March 2021 |
14 April 2021 |
April 2021 |
To be confirmed pending guidance |
The HMRC guidance sets out examples of what may amount to a reasonable excuse for missing the deadline. For instance, if your partner or another close relative died shortly before the claim deadline, you had a serious or life-threatening illness, including Coronavirus related illnesses, which prevented you from making your claim (and no one else could claim for you), or your computer software failed.
Legal Update #3 - Homeworking and Employee Surveillance
The British public have been advised to work from home (WFH) where they can for the majority of the year since the outbreak of the COVID-19 pandemic in March 2020 and the current position in England is that employees should work from home if they “can effectively do so”.
Prior to the pandemic, WFH was the exception and not the default for many employees. It was more prominent amongst higher-skilled occupations and varied greatly depending on the sector. An ONS Survey found that from January to December 2019, around 1.7 million people reported working mainly from home (roughly 5% of the workforce) and 8.7 million people said they have worked from home (less than 30% of the workforce).By contrast, flash forward to April 2020 and 46.6% of people in employment worked at home at some point as a result of the COVID-19 outbreak.
This significant and almost immediate change from officed based working to homeworking in March 2020 for many employees is expected to be a catalyst for a major shift in workplace culture when things return to some level of normality in 2021 or later. Indeed, many large businesses have already announced their plans to allow more employees to work from home in the future.
It seems that WFH is the future for many, at least to some degree. This brings about new legal considerations when it comes to employee surveillance and monitoring staff at home. Although employers have monitored employees before, new technologies have been developed as WFH has become more prevalent to allow employers to utilise more intrusive methods of monitoring home working. For instance, packages such as ActivTrack and Sneek allow employers to take screenshots of employees’ screens, take pictures of the employee every few minutes, or even video them in their homes.
A poll of 3,000 workers carried out by the Trades Union Congress (TUC) found that 15% of workers have experienced an increase in employer monitoring since the COVID-19 pandemic began in March 2020. Concerningly, less than 31% had been consulted before the monitoring technology was introduced.
The boundaries between work life and home life blur when WFH, providing employers with the difficult challenge of striking the balance between taking measures to protect the business and respecting the right to private life.
Article 8 of the European Convention on Human Rights provides the right to respect private and family life and correspondence and was incorporated into UK law by the Humans Rights Act 1998. The question is, how can this be reconciled with employee surveillance in their private homes?
Where there is an interference with an employee’s right to respect of private life, the measures taken should be necessary and proportionate to a legitimate aim. Some employer legitimate aims in this context might include assessing an employee’s productivity and performance, reducing the risk of misconduct, limiting the businesses’ exposure to liabilities, and protecting confidential information of the business.
Monitoring an employee’s use of the employer’s equipment, such as a laptop, would likely be justified and proportionate and raise a lower expectation of privacy than monitoring by video surveillance at all hours of the day. Covert surveillance is rarely likely to be necessary or proportionate.
There is no law in the UK which specifically governs monitoring of employees. The legislative framework has developed alongside the development in technology.
General Date Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA 2018)
Investigatory Powers Act 2016 and the Investigatory Powers (Interception of Businesses etc. for Monitoring and Record-keeping purposes) Regulations 2018 (SI 2018/356)
Duty of mutual trust and confidence
Discrimination under the Equality Act 2010
Advice to Employers
In order to find the right balance and not infringe on employees’ rights under Article 8 ECHR and the legislative framework in the UK, it is recommended that employers:
Legal Update #4 - Updated ICO guidance
The ICO has published right of access detailed guidance to assist organisations in dealing with subject access requests (SAR) effectively and efficiently.
SARs provide individuals with the right to obtain a copy of their personal data from their employer, as well other supplementary information.The ICO received calls for more support and clarification on parts of the law when consultation took place over the guidance in 2019.
The ICO has now provided clarity on three key points:
For more information, please contact Tim Jones on 01384 327172 or at tim.jones@higgsandsons.co.uk