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In January 2021, employment lawyers, Louise Attrup and Michael Kerrigan presented a legal update to over 100 HR professionals at the annual Hertfordshire CIPD employment update via Zoom.

With employment law constantly changing in line with the latest Government guidelines throughout 2020, Louise and Michael highlighted the key points and talked about what to expect for 2021, providing practical guidance for HR professionals.

Below are the key Q&As from the employment law update:

Q. Following the changes to the section 1 statement in the Employment Rights Act, do employers need to write to all current employees on the updated requirements about benefits, training and hours of work/remuneration etc?

A. The changes in content and scope of a section 1 statement applies to employees and workers who started work after 6 April 2020. There is no formal requirement for employers to write to their employees who started before 6 April 2020 about these changes, but some employers may choose to do so purely in the interests of harmonisation.

Q. What is the pay reference period for calculating a furlough payment?

A. The reference period is the last pay period ending on or before 19 March 2020 for fixed pay employees who were on your payroll on 19 March 2020, or for whom you made a coronavirus job retention scheme claim for before 31 October 2020. For all other fixed pay employees, the reference period is the last pay period ending before of on 30 October 2020.

For employees with variable pay, and who were on your payroll on 19 March 2020, it should be calculated as 80% of the higher of:

  • the wages earned in the corresponding calendar period in a previous year, or
  • the average wages payable in the tax year 2019/2020.

For all other employees it should be calculate as 80% of the average wages payable between 6 April 2020 (or, if later, the date the employment started) and the day before they were first furloughed, on or after 1 November 2020.

The corresponding calendar period in a previous year is

  • February 2020 for claims in February 2021
  • March 2019 for claims in March 2021
  • April 2019 for claims in April 2021.

This is because a claim might have been made in March 2020 for the affected employee. If an employee did not work for you in the calendar look back period, you must use the averaging method alone.

Q. Is there still no employment protection for those living with someone who is shielding?

A. Generally, there is no right to furlough if an employee is living with someone who is shielding in line with Public Health guidance. The government guides, and ACAS, state that if an employee is living with someone who is shielding, and they cannot do their work from home, then they should go to work. There is no duty to make reasonable adjustments for someone associated with a disabled person, but employees may have other associated discrimination protections to be mindful of. It is advisable to be sensitive to the employee’s situation and look for compromises that work for the business.

Q. Can employers force staff to take holiday whilst they are on furlough leave?

A. Yes, providing that sufficient notice is given of the intended dates and duration of leave. The notice given must be at least twice the length of the period of leave that the worker is being required to take. Any holiday taken during furlough leave must be paid at 100% of the worker’s normal salary.

Q. What are the employer’s legal obligations around pay and leave for employees who would like to volunteer for the NHS during the pandemic?

A. Under the Coronavirus Act 2020, there was a provision which would allow employees to apply for a volunteer certificate to volunteer with the emergency services in 2/3/4-week blocks. This would be a type of statutory unpaid leave. However, it requires secondary regulations to bring this section into force – as of yet no regulations have been brought in. There would have been a compensation fund to compensate for loss of earnings and expenses at a flat rate. As the law currently stands, it is unlikely that employers have to allow employees to take leave to volunteer, but any leave would be unpaid in any event.

Q. What is the employer’s obligation for recruitment of the clinically vulnerable group?

A. Employers must ensure that they do not discriminate against job applicants on the grounds of their pregnancy, gender, age or disability, one or more of which protected characteristics may apply to clinically vulnerable or clinically extremely vulnerable applicants.

Q. Is there anything an employer can do when an employee is repeatedly self-isolating on full pay?

A. Providing that the employee can provide some evidence for the need to self-isolate, for example a notification from the NHS track and trace system, it is unlikely that employers will have any recourse for dealing with employees who are repeatedly off work in self-isolation. To bring disciplinary action against that employee would also be counter-productive to the requirements of self-isolation and may discourage the employees from notifying their employer, thus putting the rest of the workforce at risk of transmission. Bogus sick pay claims could as usual be dealt with as a disciplinary matter, depending on the facts.

Q. Do employers need to check all current EU employees right to work after 30 June to ensure that they are compliant?

A. The guidance states that employers are not required to carry out retrospective right to work checks. However, there is a risk that the employer will be prosecuted if they know or have reasonable cause to believe that they are employing a person unlawfully, despite having conducted a compliant right to work check at the time that the employee started work.

We would advise employers to take specialist legal advice on an approach to adopt.

Q. When can we expect to see the changes from the Employment Law Hearing structure consultation come into force?

A. We are timetabled to receive a full government response to the consultation on or around late April 2021, which will hopefully set out more detail on the changes and when they are likely to come into force. However, given the current political landscape, it is likely that this response will be delayed.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.