Members may recall that we sought views on the proposal to introduce legislation in Northern Ireland proving the right to paid time off following the death of a child. The Department has now been published its Response and as we expected the intention is to introduce the same entitlement to Parental Bereavement Leave and Pay for Northern Ireland employees to that is presently afforded to employees in Great Britain.
The full Departmental Response can be viewed here
Of note, the Department’s Response states was unanimity of purpose that employees in Northern Ireland deserve the same right to Parental Bereavement Leave and Pay as that afforded to employees across the rest of the United Kingdom.
The Department has stated that they will push ahead with securing the progression of Northern Ireland Parental Bereavement Leave and Pay legislation with a minimum of delay. Our views is that such legislation introduced by April 2021.
Disappointingly the Department did not provide any response to its final question on the Consultation Document that sought views on the strategic direction of employment law in Northern Ireland.
A few key points:
- The definition of bereaved parent will mirror that within the corresponding GB legislation and will include those parents who experience the loss of a child through stillbirth after 24 weeks of pregnancy.
The Department resisted calls for the right to be extended to grandparents and parents that lose a child over 18 years.
- The GB Parental Bereavement Leave and Pay legislation allows bereaved parents to choose to take up to 2 weeks leave either consecutively or non-consecutively in weekly blocks. The Department confirmed that it is their intention to make the same provision for bereaved parents in Northern Ireland.
- When considering the appropriate Leave Window the Department agreed with GB that the provision for a two-week block or two discontinuous weeks of leave across a 56-week period maximised the benefit for bereaved parents. The Department intends to replicate GB provisions and legislate for a 56-week period during which parental bereavement leave can be taken.
- The Department intends to follow the GB legislation in respect of Notice Periods. Accordingly, for leave taken shortly after the death of a child, there will still be a requirement for notice to be given. However, in recognition of the impact that such a loss might have in preventing notice being given during the earlier period the legislation will provide for this notice to be given as soon as is practicable following the death if unable to be given prior to the absence.
For leave taken at a later date, for example on a particular anniversary or birthday, a short notice period of one week will be required to will fairly balance the needs of bereaved parents with those of employers.
- The notice for leave will take the form of a self-declaration with an acknowledgement of entitlement and the Response states “it will be recognised as such by employers.” Whilst the Department does not intend to have an evidential requirement for entitlement to parental bereavement leave, there will be a requirement for evidence of entitlement to parental bereavement pay.
- The Department will also follow GB in the level of the statutory pay as they believe it is important to maintain an alignment with existing family related statutory pay provisions. The Department states that disparities between employees in Northern Ireland and the rest of the United Kingdom should be kept to a minimum whenever possible. In addition making a change to the amount payable would also result in a delay to the introduction of this new statutory right, which they want to avoid. The statutory payment for this provision will therefore be paid in line with other statutory payments, which presently is the lower of either £151.20 or 90% of an employee’s average weekly earnings.
- Again, in line with the GB provisions, there will be a requirement for those wishing to avail of parental bereavement pay to notify their employer in writing within 28 days of the commencement of any associated leave. The Department believes this will ensure that employees can commence a parental bereavement leave and pay period in the immediate aftermath of the death of their child without first having to give notice to their employer if it has not been practicable to do so.
- There will be a light-touch requirement for evidence of entitlement – to be given in writing but limited to a declaration of entitlement by way of relationship with the child, the name of the person claiming the payment and the date of their child’s death.
A Template policy on this will be published once the Department has finalised the Regulations.
On 8 December 2020, the Department of Economy (DfE) ran a webinar in conjunction with the Home Office dealing with the issues arising with the workforce following Brexit.
There were a number of questions asked by delegates and DfE committed to responding in writing which they have now done in this 24 page document. We have decided to circulate this as we believe some Members may find the attached information helpful. The answers have been reviewed and cleared by the Home Office and are up to date as at 28 January 2021.
These extensive FAQs cover issues including:
- Points Based System
- EU Settlement Scheme
- Frontier Workers
- Right To Work Checks
- Seasonal Agriculture Workers
- Shortage Occupation List
- Sponsorship & Recruitment
- Visas
In response to what 3 actions should Employers should do now they said:
- Ensure any EU Nationals working for them are aware of the EU Settlement Scheme signpost them to official sources of information and support, and encourage them to apply.
- Make a decision as to whether they need to become a Sponsor, considering their current and planned recruitment practices.
- Take the right action at the right time – consider processing and lead in times.
A useful link document referencing the web pages where applications can be made for Settled Status, Frontier Workers is available below.
If you have any queries, please contact us. Depending on the complexity of the issue we may refer you for further specialist immigration advice.
New Presidential Guidance and Direction has been released confirming that the Tribunal building will now be closed until at least 1 March 2021.
Members may know that the Tribunal building was closed on 19 January 2021 and we were informed at that stage that it would stay closed until at least the 5 February 2021.
The closure was initially to allow a deep clean and therefore it was confirmed that there were a number positive Covid cases and persons having to self-isolate. A further updated Risk Assessment was then commissioned.
The Tribunal has confirmed that it is not yet in a position to provide an indicative date as to when the Tribunal building can safely reopen and will only re-open on 1 March 2021 if it is safe to do so.
The Tribunal’s Risk Assessment is currently being updated which has been described as a ‘significant & substantial piece of work’.
Further guidance (similar to the previous Presidential Directions) has been provided in relation to the management and listing of cases.
If any Member has a case listed on or before 1 March 2021 we will either be in contact with you, or you can contact us to discuss the impact on your case further.
As Members will be aware, an employer can be liable for acts of discrimination or harassment committed by its employees in the course of employment. This means that, even if an employee acts without your knowledge or approval, the business can still be held liable for that employee’s discriminatory acts.
However, there is a defence available to an employer if it can prove that it took such steps as were reasonably practicable (the standard in Northern Ireland) or all reasonable steps (the standard under the Equality Act in GB) to prevent the employee from doing the discriminatory act. This is often referred to as “the statutory defence.”
On 4 February 2021, the EAT in England and Wales delivered its Decision in Allay (UK) Ltd v Gehlen. This was a Claim of race discrimination claim in which the employer argued that it had provided training and therefore should not be held liable for acts of racial harassment carried out by its employee.
The EAT did not accept the employer’s arguments and found the employer could not rely on the statutory defence.
The employer had an equal opportunity policy and an anti-bullying and harassment procedure dating from 2016. Equality and diversity training had been given by the employer at various times, that training included a slide on what could be considered to be harassment.
However, the training had been given over a year before the harassment took place. This led the EAT to describe the training as “stale and no longer effective to prevent harassment.”
The EAT also went on to state “Brief and superficial training is unlikely to have a substantial effect in preventing harassment…Thorough and forcefully presented training is more likely to be effective, and to last longer.”
This case is a timely reminder of the need for employers to keep their equal opportunities training up to date. The EAT focused not only on the frequency of such training, but also the content stating that whilst employees may attend anti-harassment training, they may not understand it. It is therefore important to ensure that the training you provide is comprehensive and is delivered in a way that employees can ask questions so they understand the legal position and your organisation’s rules and standards.
New laws on IR35 were delayed in 2020 due to the pandemic and are now due in from 6 April 2021.
Not all Organisations will be affected but those that need to understand comply with the rules include:
- Medium & large-sized private sector organisations that engage contractors who work through own limited company /other intermediary
- Employment Agencies & third parties that supply contractors
- Public sector that engage contractors who work through own limited co. /other intermediary
Small private sector businesses will be exempt from the new rules. A company is small if it satisfies two or more of the following requirements:
- Its annual turnover is not more than £10.2 million.
- Its balance sheet total is not more than £5.1 million.
- It has not more than 50 employees.
In addition, a company is always small for its first financial year. Where the small company is part of a larger group of companies, the group turnover and revenue will need to be considered. Non-corporate businesses will be treated as “small” for a tax year if their annual turnover in the financial year ending at least nine months before the start of the relevant tax year was not more than £10.2 million.
HMRC has now published a Policy Paper to support organisations in complying with changes to off-payroll working rules IR35. The new briefing explains the approach HMRC will take for new compliance activity from 6/04/21. It builds on the approach explained in ‘Ensuring the correct tax is paid.’
It is divided into 3 sections:
The Compliance principles are:
- We will support customers who are trying to do the right thing and comply with the rules
- We will help customers meet their responsibilities under the off-payroll working rules
- Where customers make a mistake, we will help them correct it
- We will check that mistakes are corrected
- We will identify and correct non-compliance with the off-payroll working rules
- We will challenge deliberately non-compliant customers
- We will challenge tax avoidance schemes that claim to avoid the off-payroll working rules or otherwise reduce the tax payable
- We will use a specialist team to carry out all our off-payroll working compliance activity
The Briefing is not intended to outline compliance approach for contractors who work through their own limited company/other intermediary. There HMRC will apply the principles set out in Ensuring the correct tax is paid and will work with contractors to get their tax right.
HMRC has also produced a toolkit to find out if a worker on a specific engagement, should be classed as employed or self-employed for tax purposes. This is called the Check employment status for tax (CEST tool) that can be accessed here.
On Friday 19 February 2021 the Supreme Court is due to hand down its Judgment in the highly publicized Uber case. This case revolves around whether the Uber drivers were workers or independent third party contractors. Undoubtedly the Uber case could affect this area.
On Friday, the Supreme Court confirmed the Court of Appeal’s earlier judgment by finding that Uber Drivers are in fact Workers and that when the Uber Drivers had the app switched on, were in area and were ready to accept rides then this should be classed as Working Time.
When handing down the oral Judgment, LCJ Leggatt set out some of the key facts leading to the Court’s decision to dismiss Uber’s appeal. Uber had argued that they simply provided an app offering the Drivers a platform to book rides and that Uber simply took a percentage of the fare.
Control, subordination and dependency
These were key themes identified in the judgement. The key facts set out by LCJ Leggatt were:
- Ride is booked through the Uber app and Uber sets the fee to be charged; the Driver cannot dictate fee that is set.
- Terms are imposed on Drivers; Drivers are not able to negotiate the fee.
- When logged on, Uber monitors Drivers rate of acceptance and decline. Uber will log Driver off for 10 minutes as penalty if their acceptance rate falls below a certain level.
- Passengers are asked by Uber to rate their Driver; if Driver fails to maintain an average rating, they are sent series of warnings.
- Uber actively restricts level of contact between Drivers and passengers.
The Court also extended the definition of working time and was influenced by the fact that when the Driver has the app switched on they were under some sort of obligation to accept trips and suffered a form of penalties for not accepting them.
The Supreme Court was not persuaded that the contract between the Drivers and Uber clearly described the relationship as the Driver being a Self Employed Independent Contractor reflected the reality of the relationship. Lord Leggatt’s said in response to this:
“The efficacy of such protection would be seriously undermined if the putative employer could by the way in which the relationship is characterised in the written contract determine, even prima facie, whether or not the other party is to be classified as a worker. Laws such as the National Minimum Wage Act were manifestly enacted to protect those whom Parliament considers to be in need of protection and not just those who are designated by their employer as qualifying for it.”
This gives a clear message to courts not to focus on what the contract states but to look at the reality of the relationship and not simply the wording of the contract. The case shifts the Court’s focus from what is stated in the contract to the relevant statutory provision. As one commentator put it:
“The headline point is that when you are deciding whether a particular individual is a worker or not, you do not start with the contract and see whether that is the sort of contract a worker would have. Instead, you start with the statutory provision – for example the right to the minimum wage – and see whether they fall into the statutory definition of a worker ‘irrespective of what had been contractually agreed’. Whether or not an individual is a worker is primarily a question of statutory interpretation not contractual interpretation.”
See Darren Newman Article End of Road for Uber
The Supreme Court found that the very purpose of these laws is to protect vulnerable workers and that it would not allow that to be avoided through contractual terms.
In reality it found that Uber tightly defined and controlled Drivers’ work; the Drivers had no ability to be entrepreneurs and could only earn more, by working more. The Drivers were not acting in an agency role, which had been argued by Uber.
The case will have huge ramifications on who is classified as a worker. For this case, it means the Drivers are now entitled to National Minimum Wage, holiday pay and rest breaks. The case will also impact the assessment of who is a worker under IR35 that comes into force of IR35 on 6 April 2021.
The full Judgment can be found here
The European Commission has published its Draft Adequacy Decision that finds that UK should be found ‘adequate’.
This Decision will now be shared with the European Data Protection Board for a ‘non-binding opinion’, before being presented to EU member states for formal approval.
If adopted these decisions will allow for continued free flow of personal data from the EU into the UK.
During this process, UK businesses & public authorities will continue to be able to receive data from the EU under the adequacy bridge agreed in the 2020 Trade and Cooperation Agreement. This ‘bridging mechanism’ will remain in place until 30 June 2021 or until the adequacy decisions come into effect, whichever is sooner.
This is an important decision for any Company that transfers personal data from EU to UK. We know a number of a companies share HR and payroll functions with their counterparts in Ireland and this will allow that process to continue.
The Government’s Response to this Decision provides links to the EC Decision and Press Releases.
The Home Office has published the following information in light of the fact that freedom of movement with the EU has ended and the UK has introduced a points-based immigration system.
It reminds businesses that they now need to register as a licensed sponsor to hire most people living outside the UK and must check that they meet certain job, salary and language requirements.
This does not apply when hiring Irish citizens, or EU citizens already living in the UK by 31 December 2020. They and their family members are eligible to apply to the EU Settlement Scheme and have until 30 June 2021 to make an application. Employers may want to encourage any EU citizens to avail of the settlement scheme.
As a transition measure for the period up to 30 June 2021, employers should continue to accept the valid passports and national identity cards of all EU citizens as evidence of their right to work.
To assist UK businesses who are thinking of recruiting from outside the UK, the Home Office has issued new publications that include:
- Workforce and Labour Supply Handbook– The Home Office, in partnership with the Association of Labour Providers (ALP), has created this to help employers and providers of contingent labour, understand the new immigration system and ensure compliance with right to work legislation for both existing workers and new recruits.
- The Right to Work Leaflet– which employers can share to clarify requirements to EU employees provides information for individuals on their rights and obligations depending on when they arrived in the UK.
Become a Licensed Visa Sponsor
If you’re not already a licensed sponsor and you think you’ll want to sponsor workers, for instance, through the Skilled Worker route, the Home Office recommends that you should apply now. Fees apply and allow around 8 weeks for your licence to be processed; for an additional fee, businesses can be fast-tracked to receive a decision within 10 days.
Further information from the Home Office on the points-based immigration system and the available routes is available in the employer immigration guide at GOV.UK
The Chancellor announced his Budget yesterday, 3 March 2021. Whilst the tax and benefits measures announced in that Budget will apply to all the UK, the spending announcements will only apply in England. For spending, the Northern Ireland Executive is awarded a grant calculated on the basis of the Barnett formula that they can then decide how to use. The grant awarded to Northern Ireland in yesterday’s budget was £410 million.
We have not provided a comprehensive summary below but highlighted a few key points.
Furlough
The headline fact, leaked on the evening before the Budget, was the extension of the Furlough Scheme until 30 September 2021.
All the Furlough Guides have now been updated to reflect this extension. See for example Check which employees you can furlough
The changes made to the Guides reflect the Scheme’s extension. However, importantly they also provide for an extension to the cut-off date for eligibility. From 1 May 2021 anyone employed on 2 March 2021 can be furloughed.
The Guide states:
“For periods starting on or after 1 May 2021, you can claim for employees who were employed on 2 March 2021, as long as you have made a PAYE Real Time Information (RTI) submission to HMRC between 20 March 2020 and 2 March 2021, notifying a payment of earnings for that employee. You do not need to have previously claimed for an employee before the 2 March 2021 to claim for periods from starting on or after 1 May 2021.”
Businesses who created and started a PAYE payroll scheme on or before 2 March 2021 are also eligible for periods starting on or after 1 May 2021
HMRC has also published a new paper Changes to the CJRS Scheme from July 2021 setting out how the Scheme will work in July. The paper does not yet cover August and September 2021.
From 1 July 2021, the level of grant will be reduced each month and employers will be asked to contribute towards the cost of furloughed employees’ wages. These contributions are:
- July: 10% to the hours not worked in addition to the NICs and pension contributions
- August & September: 20% to the hours not worked in addition to the NICs and pension contributions
New information on claim periods from May 2021 has also been added to the sections ‘If your employee is on a fixed term contract’ and ‘Employee transfers under TUPE’
National Minimum Wage (NMW) and National Living Wage (NLW)
From 1 April 2021, the NMW will increase from £8.20 to £8.36 and the NLW will rise from £8.71 to £8.91.
Statutory Sick Pay (SSP)
Small and medium-sized employers in the UK will continue to be able to reclaim up to two weeks of eligible Statutory Sick Pay (SSP) costs per employee from the Government
The Homes Office has now published further guidance for employers on right to work checks for EEA and Swiss nationals during the grace period (1 January – 30 June 2021) which can be viewed here
What it does state is:
Right to work checks for EEA nationals will not change until after 30 June 2021. Until then, EEA nationals can use their passport or national identity card to evidence their right to work. You are not expected to differentiate between EEA nationals who arrived before the end of the transition period (31 December 2020) and those arriving after the grace period from 1 January to 30 June 2021.
From 1 July checks will change, and all EEA nationals will be required to demonstrate they have a right to work through evidence of their immigration status, rather than their nationality, using the online service. There will be a small number of exceptions and these will be detailed in further guidance. New guidance on how to conduct right to work checks on EEA nationals from 1 July will be provided in advance of this date. Irish nationals will continue to have the right to work throughout and prove their right to work as they do now, for example by using their passport.