Acas publishes new advice on long COVID

Acas has published new advice for both employers and workers on the treatment of workers who are suffering from the prolonged effects of a COVID-19 infection, now widely known as long COVID. 

Acas advice is that employers and workers should discuss the impacts of long COVID as early as possible after diagnosis and then work together to find ways to help support workers who are suffering from it. The advice also states that the usual rules for sickness absence and sick pay apply when someone is off work because of long COVID, and that the options available to employers to help their staff return to work include:

  • arranging and offering occupational health assessments
  • exploring reasonable adjustments, which can vary from changed working hours to adapted physical work spaces
  • discussing flexible working as an option as well as a phased return, which may mean the worker coming back part-time initially to build back up to working their normal hours.

The advice also provides information on whether long COVID is to be treated as a disability and avoiding discrimination.

Free advisory data protection check-ups and free online training on cyber security

The Information Commissioner’s Office (ICO) has published a new blog about free advisory check-ups that it is offering to help small businesses make the best use of their personal data. Small organisations, including small businesses, small groups/clubs and sole traders, can apply for an informal session of up to two hours where they will work with a member of the ICO’s SME team to complete a health check of their practices. At the end, they will receive a brief report setting out what they need to do to handle data more effectively as their business grows. Small organisations can apply for a check-up by completing an online form, and they will then be contacted by the ICO if their request can be progressed.

In addition, the National Cyber Security Centre (NCSC) has announced that it is offering new free online training for small organisations, particularly aimed at those that do not have an IT department or technical staff responsible for cyber security. The training will guide businesses through the actions they need to take to reduce the likelihood of common cyber-attacks. The training demonstrates how businesses can improve their resilience, and covers five key areas:

  • backing up data correctly
  • protecting the business against malware
  • keeping the devices used by employees secure
  • the importance of creating strong passwords
  • defending the business against phishing.

Employment Status Tool

HMRC’s employment status service can be used to help ascertain if a worker should be classified as employed or self-employed for tax purposes in both the private and public sector. The service has recently been updated to reflect off-payroll working changes that came into effect on 6 April 2021.

The service provides HMRC’s view as to whether IR35 legislation applies to a particular engagement and whether a worker should pay tax through PAYE as well as helping to determine if the off-payroll working in the public sector rules apply to a public sector engagement.

The software can be used to check the employment status of:

  • a worker providing services;
  • a person or organisation hiring a worker; or
  • an agency placing a worker.

HMRC has said that it will stand by the result given unless a compliance check finds the information provided was not accurate. HMRC will not stand by the results of contrived arrangements designed to achieve a particular outcome. HMRC are clear that this would be treated as evidence of deliberate non-compliance and could result in higher penalties.

The service is anonymous, and the results are not stored online. However, the results can be printed and held for your own records. If any changes take place to the workers role their status should be reassessed.

Encourage staff to get the COVID-19 vaccine

The government is calling on all employers to make a commitment to help employees get the COVID-19 vaccine, including during working hours, to drive vaccine uptake across the UK. To support this, the government has produced a toolkit so that employers can run their own internal awareness campaigns to promote the benefits of vaccination.

The toolkit can be downloaded as a zip folder and it comprises an employer briefing sheet, a vaccine fact sheet, posters, question and answer videos, web banners and other resources so that employers can ensure their employees get access to reliable and accurate information about the COVID-19 vaccine.

End to COVID-19 adjusted right to work checks

The government has confirmed, in its updated guidance on carrying out right to work checks during the coronavirus pandemic, that the temporary COVID-19 adjusted right to work check process will come to an end on 16 May 2021. This temporary process, in place since 30 March 2020, has allowed right to work checks to be carried out over video calls and for job applicants to send scanned documents or a photo of their documents to employers via email or a mobile app, rather than sending the originals. The cessation of this temporary process means that, from 17 May 2021, employers must revert to undertaking fully compliant right to work checks, i.e. by once again checking either the job applicant’s original documents or their right to work online, in the latter case if they have provided the employer with their share code.

The updated guidance also provides that employers do not need to carry out retrospective physical checks of original documents on those who had a COVID-19 adjusted right to work check between 30 March 2020 and 16 May 2021 inclusive. Employers will maintain a statutory defence against a civil penalty if the check they have undertaken during this period was carried out in the manner set out in the COVID-19 adjusted right to work checks guidance.
 

Outcome of the Uber case

The Supreme Court has handed down a landmark judgement in the Uber case. The Supreme Court unanimously upheld the decisions of earlier courts and has found that Uber drivers are ‘workers’ and not self-employed as Uber has tried to argue. 

The decision of the Supreme Court as the final court of appeal in the UK marks the end of the case for Uber. The Uber case had been ongoing since an employment tribunal decision in October 2016 found that two former Uber drivers worked for Uber. At the time of the tribunal hearing in 2016, the number of Uber drivers operating in the UK was estimated to be around 40,000, of whom around 30,000 were operating in the London area. The ruling in this case has important implications, not just for Uber drivers, but for the many people across the country working in the gig economy.

The decision means that Uber drivers are entitled to the minimum wage (including the right to back pay), holiday entitlement and certain other employment rights. The Supreme Court also ruled that Uber drivers are ‘working’ for the entire period that they are logged into the Uber app within the territory in which they were licensed to operate and were ready and willing to accept trips, and not just during the periods that they are driving passengers to their destinations.

The judgment does not give the ‘workers’ full ‘employee’ rights, for example, a worker cannot claim unfair dismissal or a statutory redundancy payment.

Post-Brexit review of workers’ rights cancelled

In an apparent U-turn, the Business Secretary has confirmed during a television interview that a proposed post-Brexit review of EU-derived workers' rights, due to be carried out by the Department for Business, Energy & Industrial Strategy (BEIS), has been cancelled. The review was expected to consider proposals to amend the Working Time Regulations 1998, including the possible termination of the 48-hour maximum working week, changes to rules on rest breaks and excluding overtime pay from the calculation of some holiday pay entitlements. The Business Secretary has also stated on Twitter that the government wants to "protect and enhance workers' rights going forward, not row back on them”.

It therefore now seems to be the case that no changes to EU-derived employment law will be pushed through by the government in the short term. In the longer term, that position may well change.

Rogue employers named and shamed for failing to pay minimum wage

139 employers, including some of the UK’s biggest household names, have been named and shamed in a government press release for failing to pay £6.7 million to over 95,000 workers in breach of the national minimum wage (NMW) legislation.

This is the first time in over two years that the government has named and shamed employers for failing to pay the NMW, as the naming and shaming scheme was paused in 2018 so that an evaluation into its effectiveness could be carried out. The scheme has now resumed but one key change is that the press release includes a new educational bulletin which sets out the most common reasons for NMW underpayment among employers in this naming round, together with a summary of NMW guidance on paying workers.

The press release highlights that one of the main causes of NMW breaches was workers being made to cover work costs, which would take their pay below the NMW, such as paying for uniforms, training, meals or parking fees. In addition, some employers failed to raise workers’ pay after they had a birthday which should have moved them into a different NMW bracket. Two other common reasons for underpayment were failing to pay the correct rate to apprentices and failing to pay workers for working time, such as for additional work before and after their shifts or rounding clock-in time to the nearest hour.

All the employers named in the press release have now paid back their workers and were also forced to pay financial penalties.

SMP, SAP, SSP, ShPP, SPBP and SSP to rise from April 2021

According to proposals set out in a government policy paper, the revised rates for statutory maternity pay (SMP), statutory adoption pay (SAP), statutory paternity pay (SPP), statutory shared parental pay (ShPP), statutory parental bereavement pay (SPBP) and statutory sick pay (SSP) for tax year 2021/22 are to be as follows:

  • the standard weekly rates of SMP, SAP, SPP, ShPP and SPBP will increase from £151.20 to £151.97 (or 90% of the employee’s weekly earnings if that amount is lower than the statutory rate) – it is assumed this will be for payment weeks commencing on or after Sunday, 4 April 2021
  • the prescribed weekly rate of maternity allowance (MA) will increase from £151.20 to £151.97 (or 90% of the individual’s weekly earnings if that amount is lower than the statutory rate)
  • the weekly rate of SSP will increase from £95.85 to £96.35 from 6 April 2021.

The amount of the earnings threshold (currently £120.00 per week) for tax year 2021/22, below which employees do not qualify for SMP, SAP, SPP, ShPP, SPBP and SSP, is yet to be confirmed.

Immigration Act receives Royal Assent

The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 received Royal Assent on 11 November 2020. This is the legislation which will end the free movement of persons under retained EU law in the UK at 11pm on 31 December 2020. It will also repeal other retained EU law relating to immigration.

A new points-based immigration system will apply to EU (including EEA and Swiss) citizens arriving in the UK from 1 January 2021 onwards and these workers will need to apply for a work visa in advance. They will be awarded points for a job offer at the appropriate skill level, if they speak English, and for meeting the appropriate salary threshold. Visas will be awarded to those who gain enough points. However, Irish citizens will continue to be able to enter and live in the UK as they do now.