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UPDATE: Future of Employment Law

Jun 29 2021

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1.    Employment Tribunal Claims

Irrespective of the long running Brexit and COVID-19 factors of the previous years, Employment Tribunal claims have risen significantly since the removal in 2017 of the issue and hearing fees introduced in 2013.

There is still a significant backlog in employment claims and the Employment Tribunal Service have put in place plans to combat this operationally but this will take time from inception to resolution to deal with the existing backlog and those claims coming through the system simultaneously.

Businesses should think commercially and take advice early where scenarios give rise to potential claims. Over 50% of businesses in the UK have faced accusations or claims of unlawful behaviour and employee complaints form most of this figure. In light of the backlog, new employment claims will take time to come through the ACAS Early Conciliation process and then if necessary, the Employment Tribunal system.

From a practical perspective, preservation of evidence when there is a delay is key. Ensure that when employees leave the business, any terms reached reflect that they are bound to assist with witness evidence in the future. It is also important that businesses keep a paper-trail explaining and justifying any reasons for decisions taken, as the timeframe may be significant. 

2.    End of the Furlough Scheme

Due to be reduced as at 01 July 2021, our separate guidance sets out the tapering down of the Coronavirus Job Retention Scheme and for details visit our website link here.

Businesses will have been live to this and the current decision not to extend the Furlough scheme appears to be maintained. Steps should be taken to forecast the outcome of the September 2021 finality against the financial repercussions of sustaining a workforce without government support.

Linked to the above heightened litigation threat, there is likely to be a spate of claims brought arising out of down-scaling of businesses, redundancies as well as terminally the closing down of businesses or insolvency measures.

3.    GDPR, data policies and the effect of homeworking

Data protection, and ensuring confidential information remains so, has been a challenge with the adaptation to remote working for many businesses. As a result, data leaks and issues have arisen giving rise in the previous few years to a 300% increase in claims brought relating to data protection.

GDPR legislation was amended in 2018 to bring up to date the data protection rules from the late nineties. Businesses should not only ensure that their GDPR policies, privacy policies and standards are up to date but that also training and compliance in accordance with policies is regularly instilled in their workforce.

4.    Returning to work post COVID restrictions

Businesses should ensure that they have carried out a sufficient risk assessment and taken adequate steps to minimise health and safety risks in the workplace before employees make their return.

The steps to consider to protect the workforce will vary significantly depending on the trade and particularly the workplace. Consideration should also be given to external authorities such as licensing and the key considerations such as putting in place social distancing measures; considering changing work times or staggering shift patterns; reducing contact with other employees or workers; limiting work-related travel; and providing PPE where necessary.

These measures may be subject to change in the latter part of 2021. Where a change occurs, it is important for a business to acknowledge, take advice and act.

For the foreseeable future flexible working is the likelihood, whether mandated or not. Even prior to the COVID-19 pandemic, the government in 2019 had an intention to introduce flexible working measures and this has been now highlighted by the adaptability of many businesses operating remotely, employees embracing changes and thus fuelling workforce desire for more long-term hybrid and flexible working.

Flexible working requests will increase. Businesses should be alive to the legislation with regard to such requests and the requirements of the organisation itself as market practice will fuel an emphasis on this.

5.    End of the EU Settlement Scheme

From 01 July 2021, all UK employers must be granted with a sponsor licence to employ skilled migrant workers from EU and non-EU countries.  

Where EU nationals have not registered with the EU Settlement Scheme by 30 June 2021 and where they do not hold another form of UK immigration permission, they will require sponsorship from their employer to work in the UK. 

The sponsor licence process is complex. Businesses need to identify the type of sponsor licence they require, put in place key personnel to ensure compliance with Home Office requirements and submit an application with the relevant documents to ensure that the licence is granted and then can be utilised for the migration of workers into the UK.  

6.     IR35 and off-payroll

Originally proposed to be reformed in April 2020, an extension of the IR35 reforms to April 2021 means that the new rules are in force and businesses need to be mindful of the changes. From 6 April 2021, the reformed IR35 rules shift the responsibility for determining the tax status of a contractor from the worker to the organisation. HMRC have stated that End Users won’t have to pay penalties for inaccuracies relating to the Off-Payroll Rules until 6 April 2022, but if there is evidence of non-compliance that is deliberate, HMRC will enforce. This does mean that businesses have to comply with Off-Payroll Rules and whilst penalties could be waived, the tax will need to be paid.

Whilst businesses should already have arrangements in place to comply with the Off-Payroll Rules, compliance is an ongoing requirement and medium and large businesses will need to consider their obligations in respect of any new intermediary contractors they take on in the future.

Delayed future – The Employment Bill

A future development that was expected to be published for 2021 was the Employment Bill. The measures proposed were significant and wide-ranging. These reforms have been put on hold in all likelihood and whilst these measures are not on the horizon for 2021, for those looking to 2022 here is a summary of the likely points to consider going forward:

·        Enforcement Body: The introduction of a single labour market enforcement body to ensure that vulnerable workers are better informed of their rights, and to support businesses in compliance. The body is proposed to be responsible for enforcing minimum wage requirements, anti-slavery law and holiday pay for vulnerable workers and regulating employment agencies and use of umbrella companies.

·        Zero Hours: A right to request a more stable and predictable contract after 26 weeks’ service, aimed at those engaged under contracts with variable and unpredictable hours, such as zero-hours employees is proposed. This has long been a concern within certain industries and is not likely to disappear.

·        The Employment (Allocation of Tips) Bill: Payment of all tips and service charges shall go to employees and workers, ensuring fair distribution of sums under a new statutory code.

·        Right to neonatal leave and pay: It is anticipated that a new right will be introduced for parents to take an additional week of leave for every week their baby is in neonatal care (up to a maximum of 12 weeks), supporting parents whose babies need neonatal care.

·        Unpaid carers leave: A new right for unpaid carers to have an additional week of leave a year (unpaid) has been sought to be introduced.

·        Redundancy: An extension is anticipated for redundancy protection to cover pregnant employees from the date they notify the employer of their pregnancy and for a period of six months after the end of their pregnancy, adding to the current protection that applies during maternity leave for those in a redundancy situation.

For any advice and assistance on the above or any employment matter, please contact us at employment@cdsmayfair.com or Thomas.hunt@cdsmayfair.com.

Alternatively, visit our website: www.cdsmayfair.com to see how our expert teams can assist.


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