The World of Work by Harry Sherrard
28th April 2020 – Employment Law Update
The current pandemic is presenting an unprecedented challenge for organisations and we are continuing to post videos on our YouTube channel to guide employers on the latest updates on furlough leave and related issues. However other aspects of employment law are also changing and we have detailed some of the major updates that you need to be aware of now and over the next few months. But before we do there are a few Covid-19 pandemic updates to note before we focus on other areas;
Right to work checks during the pandemic
The Home Office has introduced temporary measures to help employers comply with ‘right to work’ checks without seeing individuals face to face. These will allow employers to carry out checks via video calls, or for workers to send scanned documents or photos of documents via email or a mobile app, rather than sending originals. These are only temporary measures and the Home Office will let employers know in advance when they will end. The standard existing regime will then start again and employers will have to carry out retrospective checks on employees who started, or needed a follow-up check, during these measures.
Coronavirus and Statutory Sick Pay
New rules on Statutory Sick Pay (SSP) are now in force. SSP is available from day one of any absence related to coronavirus and must be paid to anyone:
Who has coronavirus and is unable to work; or
Can’t work because they are self-isolating at home.
Employers with fewer than 250 employees can recover up to two weeks SSP costs from the government via an online portal. this is not yet available but the link to where is will be found is here https://www.gov.uk/guidance/claim-back-statutory-sick-pay-paid-to-employees-due-to-coronavirus-covid-19.
HMRC have also published guidance on who can apply for a rebate and what records have to be kept.
Information Commissioner – New data protection/coronavirus information hub
The Information Commissioner’s Office (ICO) has launched an information hub to help individuals and organisations navigate data protection during the pandemic including advice about what employers can say to other staff members if someone is diagnosed with coronavirus. Click here for direct access to the hub;
Amendment to the Working Time Regulations due to coronavirus
On 27th March the Government published new Regulations which amend the Working Time Regulations 1998 and allow up to four weeks leave to be carried over into subsequent leave years. Usually, workers can only carry over leave from one year to the next if they are too ill to take it. But, in the context of coronavirus and the extraordinary measures being taken to tackle it, the government has extended this exception. Now, if it’s not “reasonably practicable” for a worker to take some or all the leave as a result of coronavirus, they can carry it over for up to two years from the end of the leave year in which it accrued.
Other Employment Law News
Increase in ‘injury to feeling’ bands
Anyone who wins a discrimination claim is entitled to receive an award to compensate them for ‘injury to their feelings’. These are known as the ‘Vento’ bands. From Monday 6 April 2020 these have increased in line with the Retail Price Index as follows:
Lower band (less serious cases) – £900 to £9,000
Middle band (cases that do not merit an award in the upper band) – £9,000 to £27,000
Upper band (for the most serious cases) – £27,000 to £45,000
Tribunals can also make awards over £45,000 for exceptionally serious cases.
Please note: these awards relate to any claim submitted on or after Monday 6 April 2020.
New Immigration System
The Government has published plans for a new points-based immigration system which will apply from 1 January 2021 to EU and EU migrant workers. Under the system, all would be Tier Two (General) migrants will need to speak English and will also need an offer from an approved sponsor, for a role at the required skill level and salary. The minimum salary threshold will be set at £25,600. In certain circumstances however, the minimum salary threshold will be reduced to £20,480. There will not be a requirement to advertise a role and no cap on Tier Two work visas.
Changes to holiday pay
Previously, if your worker’s pay varies because they don’t have normal working hours, or their days of work vary, you had to calculate their holiday pay by going back 12 weeks to work out their average weekly rate of pay. This has to include regularly worked overtime, allowances that are linked to work (rather than to cover expenses) and some commission schemes. From Monday 6 April 2020, the calculation period has been extended to 52 weeks. This change is designed to even out the seasonal variation in pay for many casual workers.
If you use temporary agency staff, you might notice that the rates will increase. This is because with effect from Monday 6 April 2020, employment businesses are now not able to employ individuals on ‘Swedish derogation’ contracts of employment. This means that agency staff may be entitled to equal pay with employees you directly employ after 12 weeks in the same role.
An important Supreme Court Judgment
Earlier this month, the Supreme Court handed down an important judgment which clarified how far an organisation can be made legally responsible for the wrongdoing of someone else connected to it. In Morrisons v Various Claimants an employee, Mr Skelton, deliberately uploaded the data of around 100,000 members of staff to a publicly accessible website.
Employers are only responsible for the negligent or wrongful actions of others if there is a relationship between the parties and it is fair to make one of them pay for the fault of the other. There must also be a sufficient connection between that relationship and the wrongdoing of the other person. In this case the relationship was clear; Mr Skelton was employed by it. But, were his actions so closely connected to those he was authorised to do, they could be deemed to be done in the course of his employment? Not in this case. Mr Skelton was not authorised to send sensitive staff information to a public site and did so out of malice. The Supreme Court stated “the fact that his employment gave him the opportunity to commit the wrongful act is not sufficient to warrant the imposition of vicarious liability.”
This decision will come as a relief to employers who may have been worried about the increasing scope of vicarious liability claims. The Supreme Court has now made it clear that employers will not normally be vicariously liable for the actions of any member of staff pursuing a personal vendetta and that the motivation behind such actions is still relevant.
We will continue to keep you updated on general employment law news and any news linked to the coronavirus pandemic via regular blogs and our YouTube channel.
Click here for our YouTube channel and watch the latest videos on updates during the crisis.
Meanwhile, if you would like further information on any of the topics detailed in this blog please email firstname.lastname@example.org or call the office on 01273 834120 to talk to a member of our team.
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