An Employment Law Update: A round up of 2020 and what's to come in 2021

2020 A Round Up
2020 was an exceptional year for all involved in the world of Employment Law. As we got to grips with changes in our everyday lives and legislation to mitigate the effect of  those changes, the key changes affecting Employment Law that were unexpected came in the form of:

1. The Coronavirus Job Retention Scheme (CJRS) - The scheme has been introduced as a result of the 2019 COVID-19 pandemic and introduced the concept of furlough. The scheme provides government support for the payment of wages to protect jobs. The Chancellor has issued three Treasury directions under sections 71 and 76 of the Coronavirus Act 2020. More information on CJRS and frequently asked questions in our ‘still foggy over furlough’ blog furlough can be found here.
    
2. Holidays - The Working Time Regulations 1998 were amended with effect from 26 March 2020 to allow employees to carry over up to 4 weeks accrued holiday and to take it in the following two years. The amendment only applies to those where it was not reasonably practicable to take annual leave in the 2020 annual leave year due to the effects of coronavirus.
    
3. Early Conciliation - On 17 September 2020, the Employment Tribunal Rules were changed  to allow employment judges greater discretion to accept claims containing clerical errors relating to EC. These come into force on 8 October 2020. Changes were also made to the Early Conciliation Rules of Procedure, with effect from 1 December 2020, which give Acas greater scope to correct errors on EC forms and the EC period was increased from one month to six weeks, while removing the ability of Acas to extend the EC period by a further 14 days These took effect from 1 December 2020. The overall timeframe for parties to remain in EC remains the same.

A blog on other legal changes that occurred in 2020 can be found here.

2021 Dates for Your Diary

1. 6 April 2021-off pay roll workers (IR35) - The introduction of IR35 was delayed from April 2020 to April 2021. The rules require that employment taxes (via PAYE) be paid by people who provide services to a business through an intermediary, such as a personal service company, if that person would otherwise be classed as an employee. From 6 April 2021 the business who engages the person providing services through an intermediary will be liable for determining if that person would otherwise be classed as an employee meaning the IR35 rules apply, rather than the person providing services. The rules do not apply to small business (i.e. those businesses where two of the three following conditions are met (1) an annual turnover of not more than 10.2 million, (2) a balance sheet of not more than £5.1 million (3) no more than 50 employees). HMRC have published a tool to assist businesses in determining if IR35 will apply to people who provide them with personal services. This can be found here.
    
2. 6 April 2021 - The National minimum wage will increase as follows:

   Age 23 or over £8.91
   Age 21 to 22: £8.36
   Age 18 to 20: £6.56
   Age 16 to 17: £4.62
   Apprentice rate: £4.30
   Accommodation offset: £8.36 per week
   
   The statutory limit on a week’s pay in employment Tribunal cases used for calculating awards such as the basic award and redundancy payments is expected to increase together with the maximum compensatory award for dismissals.

3. 30 April 2021 - The current furlough scheme is due to end. It is not clear if it will be extended further or replaced with something else. The scheme currently provides employers with up to 80% of a furloughed employees wages (capped at £2500 per month) meaning employers have to pick up NI contributions and pension contributions. Employers are also able to top up the other 20% of pay if they chose to. We have an updated ‘still foggy over furlough blog’ which responds to frequently asked question on furlough which can be accessed here.

4. 1 July 2021 – A new immigration system will apply in the UK. This means that EEA nationals coming to work in the UK will need to comply with the same visa requirements as other non EEA Nationals. Existing EEA Nationals in the UK by 31 December 2020 are entitled to apply for settled or pre-settled status giving them a right to stay indefinitely. Individuals have until 30 June 2021 to apply under the settlement scheme.

2021 - A Watching Brief

• The effect of the Employment Bill – In the 2019 Queens speech it was announced that the government is planning a new employment bill which would cover:

1. A single enforcement body to better ensure workers are aware of and can enforce their rights.
2. Tips for personal service will go to workers in full (e.g. waiting staff in the hospitality sector).
3. The right to request a more predictable and stable contract after 26 weeks service.
4. Expending the redundancy protection for those who are pregnant, on or who have taken maternity leave for 6 months after the end of maternity leave (currently ends on return from ordinary or additional maternity leave).
5. The right to leave for neonatal care with pay.
6. Introducing leave for unpaid carers.
7. Making flexible working the default position unless an employer has a good reason to decline this.
   
   There are currently no timescales for when there will be further developments in this area.

• Vaccination against Covid-19 - Three vaccines have now been approved in the UK which is likely to cause a moral dilemma between employers and workers/employees who refuse the vaccine. Employers have a duty to ensure, as far as reasonably practicable, the health and safety at work of their employees. Asking employees to agree to a vaccination against Covid-19 is likely to be a reasonable step to take to reduce the risk to employees' health and employers are likely to want to encourage employees to take up the vaccine when they are eligible. However, disciplining employees/workers who refuse to take the vaccine could give rise clams for unfair dismissal, disability, age and religious discrimination and generally cause poor employment relations. It remains to be seen how cases in this area will develop.
   
• Flexible working applications - Given how the workforce has adjusted to the effect of the pandemic, with more employers/workers than ever successfully working from home, 2021 is likely to see an increase in flexible working applications if /when restrictions ease allowing staff to return to the workplace. We anticipate employers could be less able to justify refusals where staff have worked from home successfully during the pandemic.
   
• Post-employment restrictions - The Department for Business, Energy and Industrial Strategy has issued a consultation paper to reform post-employment restrictions. The current proposals suggest either only allowing them to be enforced where the employer continues to pay some remuneration through the restricted period or banning them completely. It remains to be seen where this will lead but developments are expected.

For specialist legal advice contact Catherine Almeida, Employment Solicitor on 02920 379570 or by email on catherine.almeida@jcpsolicitors.co.uk or contact one of our local offices.

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