Employment Update - July 2021

Workplace reopening

Prime Minister Boris Johnson has confirmed that the Government's guidance to work from home wherever possible will be lifted on 19 July 2021, as England reaches the final stage of its roadmap out of lockdown. The announcement raises a number of issues for employers to consider.

We have been speaking to a number of clients about the following key considerations as workplaces look to reopen:

• COVID-secure guidance: Employers must continue to adhere to the Government's guidance on making workplaces COVID-secure. The guidance is likely to be updated to reflect changes in the Government's stance on social distancing and face coverings, and employers are likely to have a greater responsibility for determining which safety measures should continue beyond 19 July 2021. In any event, employers should keep a close eye on the guidance and will need to revise their health and safety risk assessments to reflect any changes in safety measures. Employers should also consult with employees or their representatives over significant changes to safety measures.
  
  
• Communication and training: Employers will need to give careful thought to communication and training strategies, both to inform staff of any new safety protocols and also ensure staff are confident that returning to the workplace is safe. Employers will also need to consider how to deal with individuals who are reluctant to return, taking into account the individual's reasons and personal circumstances.
  
  
• COVID-19 testing: Employers should consider what their policy on COVID-19 testing will be, along with the logistics for testing and the associated data protection issues of regularly testing staff. Employers are not required to carry out COVID-19 testing but the Government is encouraging employers to consider it as part of measures to reopen safely.
  
  
• Hybrid working: Many organisations are still considering what the "new normal" will look like in terms of working arrangements post-lockdown, whether a level of remote working will continue and, if so, whether there should be a minimum office attendance requirement. Whatever the case, employers should be clear on the policy to ensure consistency across the organisation and avoid disputes. Employers should also consider measures to avoid a "two tier" workforce where employees coming into the office more than others are treated differently.

As has been the case throughout the past year, focusing on employee wellbeing and communication will be key to ensuring a smooth transition back to the workplace.

Right to work checks - temporary COVID-19 changes extended

Employers are required to check that all employees have the right to work in the UK. Normally this involves seeing original documents in the presence of the individual. However, during the pandemic, temporary changes were made to the requirements to allow checks to be done virtually using scanned copies of documents with verification completed over a video call. The Home Office has now said that these temporary changes will come to an end on 31 August 2021. The changes had been originally extended to June and have now been extended further in line with the delay to the Government's roadmap out of lockdown.

From 1 September 2021, when carrying out right to work checks, employers must check the individual's original documents in the presence of the individual. Alternatively, where available, employers can do an online check via the Home Office online right to work check portal and complete verification via a video call with the individual, but this option is only available for certain employees (those with a biometric residence permit or card, EU nationals granted status under the EU Settlement Scheme or those granted status under the points-based immigration system – not employees with a British passport).

Employers who have done an adjusted check during the pandemic in line with the Home Office COVID-19 adjusted guidance do not need to carry out a retrospective check once the rules change on 1 September 2021. The Home Office had previously indicated that a retrospective check would be required but this is no longer necessary under its revised guidance.

Right to work checks - EEA and Swiss nationals

On 1 July 2021, new requirements for right to work checks for EEA and Swiss nationals came into force. When recruiting an EEA or Swiss national from 1 July 2021 onwards the employer must now check the individual has status under the EU Settlement Scheme or has a work permit under the new points-based system:

• The EU Settlement Scheme is for EEA and Swiss nationals who were living in the UK as at the end of the Brexit transition period (i.e. by 31 December 2020). Employers can check the right to work for such individuals by conducting an online check via the Home Office online right to work check portal. Employers will need the individual's date of birth and their "share code" from the EU Settlement Scheme application to do this. The online check will confirm whether the individual has been granted "pre-settled" or "settled" status. Where an individual has been granted "settled status", the check will only need to be completed once on recruitment. In contrast, where the individual has been granted "pre-settled status", the check will need be repeated when the pre-settled status is coming to an end. These changes only apply to new hires from 1 July 2021 – there is no requirement to conduct a retrospective check of existing EEA and Swiss national employees who have applied under the EU Settlement Scheme.
• In contrast, EEA and Swiss nationals who have come to the UK from 1 January 2021 (after the end of the Brexit transition period) are not eligible for the EU Settlement Scheme. These individuals will require a sponsored visa under the new points-based immigration system. Employers can also check the right to work for these individuals in the same way by obtaining a "share code" from the individual and conducting an online check via the Home Office online right to work check portal. Right to work checks will need to be completed on recruitment and again when the visa is coming to an end.

Employers should update their recruitment and right to work checking procedures to reflect these changes.

Offensive beliefs - are they protected?

The claimant in this case was a consultant for a not-for-profit thinktank. She engaged in debates about gender identity issues on social media and opposed legislation that would allow people to choose their gender. Her engagement was not renewed after some of her colleagues complained that her comments were offensive. She argued that this amounted to discrimination based on her beliefs. The Employment Tribunal had to decide, as a preliminary issue, whether her beliefs that sex is binary and that it is impossible for someone to change their biological sex qualified for protection under discrimination law. A core aspect of her beliefs was that she would refer to a person by the gender she considered appropriate, even if it caused offense.

The Tribunal initially concluded that her beliefs did not qualify for protection because they conflicted with the rights of others. However, on appeal, the Employment Appeal Tribunal disagreed. While the claimant's beliefs might have been offensive to some, they were still lawful and worthy of respect in a democratic society, so they were protected under discrimination law.

Refusing to work during the pandemic

A number of cases are making their way through Employment Tribunals concerning employees who have refused to return to work during the pandemic. Below are two examples:

Case 1: The employee in this case worked as a chef in a restaurant. He was initially placed on furlough as the restaurant was closed during the first lockdown. He was later asked to return to work when the employer looked to reopen the restaurant. However, he was concerned about catching COVID-19 and passing it on to his clinically vulnerable father. When he raised concerns about the lack of PPE or other COVID-secure precautions at the restaurant, he was told to "shut up and get on with it". He was later dismissed by text with the employer saying it would be running with a smaller team going forward.

The Employment Tribunal ruled that the dismissal was unfair. The employee had been dismissed because he had taken steps to protect his father in what he reasonably believed were circumstances of serious and imminent danger. This made the dismissal automatically unfair.

Case 2: The employee in this case worked for a company selling PPE, which remained open during the pandemic. The employee repeatedly asked to work from home or to be put on furlough because he was concerned about using public transport. The employer insisted that the role could only be done in the office and that furlough was not an option because the company was so busy, but offered the employee holiday or unpaid leave instead. The employee continued to ask to be put on furlough and was eventually dismissed. He argued that he was dismissed for taking steps to protect himself in circumstances of serious and imminent danger, namely the COVID-19 pandemic.

The employee lost his case. The Employment Tribunal considered that the employee had not taken steps to protect himself from danger because the employer had offered holiday or unpaid leave but the employee had insisted that he be allowed to stay home on full pay or furlough pay.

Furlough subsidy

On 1 July 2021, the Government subsidy under the Coronavirus Job Retention Scheme ("CJRS") changed. Under the CJRS, employers can put staff on furlough (paid leave) for reasons related to the pandemic, provided the employee is paid at least 80% of their normal wages for any hours not worked, up to a maximum of £2,500 (prorated for any hours worked). Previously, the Government covered the 80% of wages up to the maximum £2,500. From 1 July 2021, the Government subsidy has dropped to 70% of wages (up to a maximum of £2,187.50 per month). For August and September, the Government subsidy will drop to 60% (up to a maximum of £1,875 per month).

Employers must now top up the subsidy so that employees on furlough continue to receive at least 80% of their normal wages for any hours not worked during furlough (up to a maximum of £2,500 per month). For further details of the CJRS, please see our furlough extension briefing.

Employee data transfers

The European Commission has formally approved an adequacy decision for the UK, meaning the UK's data protection regime has been deemed sufficient to protect EU personal data. This means employers will be able to continue to transfer employee data from the EU to the UK, without having to put in place additional safeguarding mechanisms. However, the adequacy decision will expire in four years, which means there will be a further review of UK laws and practices at that stage to decide if the decision should be renewed.

Fire and rehire

The Government has confirmed that it does not plan to ban "fire and rehire" practices at this stage but has also said that "nothing is off the table". The practice is sometimes used by employers to change employees' contracts where employees are not prepared to agree to those changes. It involves terminating employees' contracts and immediately offering new contracts containing the relevant changes. The Government's confirmation comes after a report by Acas, which was commissioned by the Department for Business, Energy and Industrial Strategy following calls from the Trades Union Congress to ban the practice. The Government says it has asked Acas to produce clearer guidance on when fire and rehire should be used and will continue to work with Acas on the issue.

Ethnicity pay gap reporting

In a joint letter, the CBI, TUC and Equality and Human Rights Commission have written to Cabinet Office minister, Michael Gove MP, calling for a clear timetable for the introduction of mandatory ethnicity pay gap reporting. A Government consultation on mandatory ethnicity pay gap reporting closed in January 2019 and the Government is yet to respond with its proposals. The Government's original proposal was that mandatory ethnicity pay gap reporting would be introduced for employers with 250 or more employees, to reflect the rules relating to gender pay gap reporting. However, the Government has not confirmed whether it plans to go ahead with these proposals or, if so, when. Employment Update will report developments.

Since the last Employment Update, our work has included:

• advising on a data subject access request from a dismissed employee as a precursor to litigation
  
  
• advising on a redundancy exercise involving possible selection issues and the creation of new roles
  
  
• dealing with permanent health insurance cover for a number of employees with long term health issues
  
  
• advising on a global business integration project
  
  
• acting in the defence of a claim for equal pay and sex discrimination
  
  
• advising on the creation of an employee forum, including training for representatives
  
  
• carrying out a mediation for a client to settle an employment dispute
  
  
• carrying out an investigation into whistleblowing allegations
  
  
• advising on what steps to take at its premises when a client had multiple employees who had tested positive for COVID-19
  
  
• advising on a complex multi-site restructuring project.