Important insights for employers as we start 2021

It’s the beginning of a new year like no other and as we continue to guide our clients through the complexities of employment law, we appreciate that there is a lot for businesses to think about.

Mid-lockdown and with many businesses working under remote or other difficult working conditions, we explore some important topics for employers to consider while continuing to navigate the impact of the pandemic.

Stay at home guidance

Following the announcement of a third national lockdown, many businesses were left wondering what this meant for their employees as the country was told to ‘stay at home’. Guidance from the government states people may ‘go to work…if you cannot reasonably do so from home’, however what defines reasonable and how should businesses be encouraging their employees to act?

It’s critical that employers put a policy in place that clearly outlines the businesses expectations in light of recent announcements. It should explain, if the work cannot reasonably be done from home, why employees are required to journey into the workplace and the safety precautions that are in place. A policy is also recommended for those who can work from home as to what support is available to help them work productively and safely, as well as the employer’s expectations around outputs and engagement.

Furlough and lockdown leave

Many employees are facing extra pressure during lockdown 3 with the closure of schools resulting in the resurrection of home-schooling. We know that employers are looking for ways to support their employees with childcare, with some interesting and innovative ideas.

The latest Government guidance on the extended Coronavirus Job Retention Scheme (CJRS) makes clear that employers can potentially place employees onto furlough leave where there has been a request from an employee on account of increased childcare responsibilities. However, businesses faced with such requests need to bear in mind that:

• They need to meet the over-arching eligibility criteria of the CJRS as stated in the accompanying Treasury Direction i.e. that the business’ employment activities must have been adversely affected by COVID-19 or the measures taken to prevent or limit its further transmission; and
• There is no obligation on the employer to agree; if the employer needs the employee to work, then the request can be legitimately and lawfully refused.

A recent survey by the Trade Union Congress (TUC) found that more than 70% of working mothers who asked to be furloughed due to childcare had their requests denied and 78% of working parents had not been offered furlough by their employers at all. It is perhaps unsurprising that a campaign has been launched to see the introduction of a new statutory right for working parents to be able to request flexible working and, potentially, furlough, in order to take care of children during periods of lockdown/when school provision is affected.

Some businesses are also taking a different approach for their employees. For example, Zurich have launched an innovative policy where they are offering full time staff 10 extra days of paid leave for parents who face childcare emergencies, colloquially called ‘lockdown leave’. These and other initiatives are very much in everyone’s interests. Those businesses that are best able to adapt, and are pro-active in seeking to support employees at this challenging time, will be in good shape to thrive in a post-lockdown world, whenever that day comes…

Changes to work patterns and flexible working

Businesses had to quickly adapt to working from home earlier this year, as part of their crisis-response. Many have seen the business and people benefits that come with a more flexible working arrangement and are now willing to embrace more agile working arrangements as part of their longer-term strategy.

It is a priority for businesses wanting to move in this direction that they think carefully about the agile working arrangement that they want to foster and promote, and have a proper road map in place to achieve that goal. As part of that planning process, it is vital that employers give due consideration to the contractual and policy changes that will be necessary. Examples of some of the common areas where contractual and/or policy changes may be required include: base location, expenses, working hours, performance management, health and safety obligations and more. We also strongly encourage all businesses to consider an agile working policy in their staff handbook that clearly outline their expectations in these and other areas.

Impact of Brexit on right to work checks

After the end of the freedom of movement between the UK and the EU on 31 December 2020, employers must understand the changes to right to work checks.

Until 30 June 2021, an employer is able to confirm an EU national’s right to work in the UK using their passport or national ID card; however, from 1st July, you will no longer be able to accept an EU national’s passport or ID card alone as evidence of a permanent right to work in the UK for new employees. A new online checking system will be available and can be used by employers from 1 July.

Read more about this in Emma Cousins’ blog here.

Changes to off-payroll working rules

Due to the pandemic, planned changes to ‘off payroll working’ rules were put on the backburner. However, these changes are now coming into force on 6 April 2021 for medium and large organisations and so it’s time for those larger businesses that are reliant on contractors to get to grips with what these changes mean for them and the contractors whom they engage.

In a nutshell, companies who engage contractors via intermediaries must, from 6 April 2021, determine whether, for tax purposes, the contractors are deemed employees. Where contractors fall within the rules, it will be the responsibility of the deemed employer (the client / end user), to process all the relevant payments and taxes through payroll. These changes are now on the near horizon and so it’s important for businesses that have not done so already, to audit their workforce promptly, to gauge the likely impact of these changes on their business, and put appropriate safeguards in place, well in advance.

For further advice and guidance on these or any other employment issues, please get in touch with one of our team.