All organisations need to know about Covid vaccines

The UK has now approved three vaccines for COVID-19 and the government is currently in the process of offering it to the public according to its priority based strategy.

However, with the government dedicated to offering a vaccine to all adults by the autumn, and carrying the message that getting a vaccine represents the best chance of returning to some form of normality, organisations may be wondering what the implications of the vaccines are.

To what extent will these vaccines allow a return to normal working conditions?

It remains to be seen how quickly vaccines will permit coronavirus restrictions to be lifted and employers will need to keep up to date with all guidance coming from the government. It should be remembered that it is likely to take some time to vaccinate the entirety of the UK population, meaning that we may yet need to live under certain levels of restriction for some time. That said, as more people are vaccinated, it can be assumed that the government will consider lifting certain restrictions gradually.

Can the vaccine be offered as a work perk in the same way as the flu vaccine often is?

It has yet to be confirmed if the vaccine will become available privately. Given the extreme demand for its usage worldwide, current commentary from the government suggests that it will monitor carefully how and when it is distributed. That said, as more people are vaccinated, and COVID-19 hopefully becomes less of a threat, companies may be presented opportunity to seek private vaccinations, especially if vaccines need to be administered more than once.

Can organisations legally oblige employees to get the vaccine before returning to work? If so, how can this be enforced?

The government has not chosen to make COVID-19 vaccine mandatory. Despite this, there may be some industry sectors that may implement a requirement for its staff to have the vaccine for safety reasons. This may apply to operators in the care sector where maintaining social distancing and adhering to other safety measures is not possible.

In workplaces that do not involve care, such as offices or retail, it may be considerably more difficult to try and put in place such a restriction because of the ability to have employees working from, or maintain social distancing in other ways to mitigate the risk. In addition, there could be a number of reasons why employees do not want to take the vaccine; they may have been advised not to due to a pre-existing medical condition, or due to their religious beliefs. If employees are subjected to a detriment as a result of this or other such reasons, the organisation may face a costly discrimination claim.

How should organisations approach the vaccine issue?

The most appropriate course of action for employers appears to be to encourage staff to have the vaccine through awareness campaigns, focusing on the benefits for doing so. It should be made clear to staff through policy that whilst they will not be forced to take it, there are a significant number of benefits for doing so.

It should also be considered if external trainers may be required to further explain why the vaccines are safe and effective. Alternatively, employees can be encouraged to make an informed decision about having the vaccine by reading information from official sources, alongside a cautionary note to verify the source of their reading matter due to the existence of uncertified information.

Employees should also be reminded to treat their colleague with respect regardless of their decision over having the vaccine.

Gender pay gap reports – what organisations need to know

Gender pay gap reporting was introduced in order to tackle and discourage differences in pay between men and women in organisations. The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 took effect from 6th April 2017, requiring organisations to take a ‘snapshot’ of their gender pay data. Organisations had a further 12 months in which to analyse and publish that data, by April 2018 at the latest.

Since then, this has been an annual requirement for organisations with 250 members of staff or more, enabling them to demonstrate if they had seen any changes in a gender pay gap and, crucially, allow them to show what they’ve done to work towards this. However, all of this changed in 2020, with the challenges posed by the coronavirus pandemic leading to the government pausing the lawful need to do Therefore organisations did not have to publish a report in 2020, however the government has now confirmed that they will need to do so in 2021.

Guidance has been released from the government on how this will work, this is summarised below.

The law will work in the same way as it has done previously, but the impact of the coronavirus will be felt. The ‘snapshot’ date that employers in the private sector will need to focus on is 5th April 2020, which was just after the first lockdown was implemented and the original furlough scheme had started to be rolled out.

Normal rules on producing a report dictate that employees do not need to be included in the ‘reporting pool’ if they were not on full pay on the ‘snapshot’ date. This means that any member of staff who was furloughed, and who did not have their pay topped up to 100%, can be discounted from the report for the purposes of hourly pay calculations. The knock-on effect is that the reporting pool could be significantly reduced as a result; the results it produces may therefore show an increase, or decrease, in the gap that is not representative of the real situation.

That said, furloughed staff should still be included in any calculations relating to bonus pay, regardless of whether their salary was topped up or not.

Organisations should ensure that any report they produce is combined with a detailed explanation of the figures; if there is a substantial change, they should explain that this is as a result of the number of staff on furlough and/or the redundancies they have had to make due to coronavirus and steps the organisation had to take in 2020.

Another key issue to bear in mind is the need to have a least 250 members of staff in producing a report. Organisations may have reduced their staffing numbers throughout 2020 and therefore may believe that they are no longer required to produce a report. However, they should note that the key date is 5th April 2020. If on that date they did meet the criteria to produce a report, they will still need to do so. Again, a staffing reduction may have an impact on the figures, so this should also be clearly explained.

Furloughed staff should be taken into account when considering staffing numbers, regardless of whether their salaries were reduced or not.

New National Lockdown and School Closures

The start of January usually means the start of a new term in schools. However, the continued escalation of the coronavirus pandemic has resulted in a number of changes to the expected return of pupils to schools across the UK, a situation that is constantly changing.  From Tuesday 5th January the government have enforced a new national lockdown and have closed schools for all children with the exception of vulnerable children and children of critical workers. Nurseries can remain open to all children.

In England all primary and secondary schools, along with colleges, must now stay closed until 15th February.

In Scotland schools are open for children of key workers, however they are to remain closed across the country, including on the islands, until at least 1st February.

In Wales schools are also currently open for children of key workers, with a phased return expected from 11th January. All pupils are expected on 18th January.

Many of you may be wondering what this means for you as an employer?

Where a parent is not self-isolating but are faced with unforeseen childcaring issues, they are legally entitled to unpaid time off for dependants. The employment right to this time off is intended to be for unforeseen emergencies only, of which the coronavirus will likely fall under. The law stipulates that time off for dependants can be taken specifically where a dependant has either fallen ill, is injured, or is assaulted.

Other circumstances in which this time can be taken include where arrangements for the provision of care of a dependant need to be made, where normal arrangements have been disrupted. This would include the unexpected closure of an employee’s child’s school. Currently, there is no qualifying service period required to entitle an employee to take time off work of this nature so employees who have just started a new role can still take this time off.

If parents are to take time off for dependants, they should be aware that, aside from the fact that it is unpaid, they are required to inform their employer as soon as reasonably practicable about the absence, the reason for it and the anticipated length. Organisations should not reasonably refuse this time off. Employees have a right to take a ‘reasonable’ amount of time off, which is generally taken to be up to 2 days per instance. This is because the point of the time off is to make other arrangements for childcare, rather than time off actually to look after the child. However, employers may want to consider the coronavirus situation when establishing principles around a ‘reasonable’ amount of time.

Where it is clear that a longer period of time off may be needed, organisations may find it beneficial to open up communication with employees about how an extended period of time off will be dealt with. It may be that employees are permitted to work from home where possible, or a temporary period of other flexible working options arranged. It should be remembered that working parents can also be furloughed in response to childcaring issues where necessary. However, there is no right to be furloughed; it is used at the employer’s discretion.

 

Employing Foreign Nationals Post-Brexit

The main impact of Brexit in employment law terms will be seen in the recruitment process as immigration laws change. Employers are already under an obligation to take steps to ensure a worker’s right to work in the UK and this process will be altered in light of the consequences of Brexit.

Currently, all EU citizens, as well as those from Iceland, Liechtenstein and Norway (EEA countries) and Switzerland are able to live and work in the UK under ‘free movement of persons’.

Between 1st February 2020 and 31st December 2020, EU/EEA/Swiss citizens could still come to the UK to work without having to obtain permission before their arrival. From 1st January 2021, the transition period, and so free movement ended. This means that EU/EEA/Swiss citizens arriving in the UK will need to gain permission to work in the UK, as is currently the case with non-EU/EEA/Swiss citizens.

What are the potential consequences for employing foreign nationals unlawfully?

Employers are under a legal duty to prevent illegal working and you can be subjected to penalties where you fail to do so.

There is a civil penalty in place where the employer can be fined a maximum of £20,000 per worker who does not have permission to carry out the work they are employed to do. Under the civil penalty scheme, an immigration officer who believes the organisation is employing an individual who does not have the correct permission to work can issue a notice imposing the fine.

To gain a ‘statutory excuse’ against the civil penalty, you need carry out right to work checks in accordance with the Home Office’s checking process. You should also only make offers of employment conditional upon successful right to work checks.

A criminal offence will be committed if you employ an individual and you have ‘reasonable cause to believe’ they do not have the right to work in the UK.

From 29th January 2019, employers can rely on the Home Office’s online right to work checking service to be granted the statutory excuse. Where the service can be used to check an individual’s immigration status, no further documentary checks will be required. This is to remain in place after 1st January 2021.

Does Brexit affect EU citizens I already employ?

Yes. EU citizens who are currently working for you,  need to take action to gain permission to remain in the UK. This applies unless they have already been granted indefinite leave to remain (ILR) or are from Ireland. Employees must apply to the EU Settlement Scheme. Successful application guarantees the right to continue living and working in the UK indefinitely.

How does the EU Settlement Scheme work?

Applications for the EU Settlement Scheme opened in March 2019 and will close on 30 June 2021. This means that employees have until 30th June 2021 to submit an application. Individuals must have be in the UK by 31st December 2020 to apply. Anyone arriving from 1st January 2021 onwards is not eligible to apply.

Successful applicants who have five years’ continuous residence in the UK at the time they make the application will be granted ‘settled status’ meaning they will have indefinite leave to remain in the UK.  Five years’ continuous residence is gained when someone has lived in the UK, the Channel Islands or the Isle of Man for 6 months in any 12-month period for five years in a row, with some exceptions.

Those who were in the UK by 31st December 2020 but do not have five years’ continuous residence by the date they apply will get ‘pre-settled status’, which allows them to stay in the UK until they have reached the five year residence point i.e. it allows them to stay for a maximum of five years and then they can apply for settled status.

How should employees apply to the EU Settlement Scheme?

Applications for the Scheme are made from the gov.uk website. It is free to apply.

Applicants will need to provide a valid passport or valid national identity card, alongside a digital photograph of their face. In the absence of these, alternative evidence may be provided in certain situations.  Applicants can:

  • scan their document and upload their photo using the ‘EU Exit: ID Document Check’ app using an Android phone, or an iPhone 7 or above
  • send their document in the post and upload their photo using the online application.

This evidence will need to be provided again to switch from ‘settled’ to ‘pre-settled’ status.

Individuals can provide their national insurance number for an automated check of their residence based on tax and certain benefit records. If this check is successful, the individual will not need to provide any further documentation. If not, the Home Office will notify them of the further information required instantly.

Please get in touch if you would like a letter to send out to employees on how they can apply for the scheme.

Are there situations where ‘settled status’ may be refused?

The Government has remained clear that the majority of applications for ‘settled’ or ‘pre-settled’ status under the EU Settlement Scheme will be accepted. However, the main reason they may be rejected is if the individual has committed serious or repeated crimes and/or poses a major security risk.

Applicants will be asked to declare any criminal convictions that appear in their criminal records, either in the UK or overseas. Individuals will also be checked against the UK’s criminal database. If they have been to prison, they will usually need to have five years’ continuous residence from the date of their release.

Individuals will not be asked to disclose spent convictions, cautions or alternatives to prosecution, such as speeding fines.

What will a successful applicant receive? 

Successful applicants will be sent an email confirming their status and the date it was granted with a unique reference number rather than a physical document. It usually takes around 5 working days for complete applications to be processed if no further information is required, but it can take up to a month.

Successful applicants can obtain a ‘share code’ to prove their immigration status to employers through the government website. Share codes can be used for prospective employers to check online if a job applicant has the right to work in the UK.

How can I make sure my EU citizen employees apply to the scheme?

Employers will no doubt be keen to make sure their employees secure permission to remain in the UK. However, it is ultimately the employee’s choice whether they stay or not.

Forcing employees to apply may constitute unlawful discrimination. Whilst it is not a legal obligation for you to inform employees about the Scheme, you may choose to encourage your employees to apply by, for example:

  • providing information about the EU Settlement Scheme, what is involved and the timeframes in place
  • allowing work IT equipment to be used to make the application
  • offering assistance when making the application to employees who are not proficient in the English language or are not confident in using IT equipment.

It will be helpful to carry out an audit of your workforce to understand which of your employees may need to apply.

Should I check that my EU citizen employees have applied to the Settlement Scheme?

Government guidance on the Scheme states that it is the responsibility of the individual to make an application. There is no requirement for the individual to inform you, as their employer, that they have applied or the outcome of their application. Likewise, you should not check that an employee has applied. This does not mean that you cannot ask the employee whether they have applied. The specific wording used by the Government – that employers should not ‘check’ – is to prevent any form of discrimination against employees who are eligible but have not yet applied.

The implications for an employee who needs to apply, but does not, are not yet clear and it is hoped that the Government will provide clarity in the not too distant future.

When recruiting, can I ask job applicants to provide evidence that they have obtained status under the EU Settlement Scheme?

You must continue to check the right to work of all job applicants. Government guidance states that you will continue to check a job applicant’s right to work in the UK under existing rules until 30th June 2021 i.e. there is no change to right to work checks until then. Currently, job applicants can prove the right to work with any of the following:

  • their valid passport or national identity card if they’re an EU, EEA or Swiss citizen
  • their valid biometric residence card if they’re a non-EU, EEA or Swiss citizen family member
  • their status under the EU Settlement Scheme using the Home Office’s online right to work checking service.

Whilst job applicants can use their status under the EU Settlement Scheme as evidence, you cannot require them to produce this. If they do so, you can use the share code to check status online. If an EU citizen produces their valid passport, then this is sufficient evidence of their right to work. There is no obligation to provide their status under the Settlement Scheme. Requiring this is likely to constitute discrimination. You cannot make an offer of employment, or continued employment, dependent on an individual having made an application.

How will I know whether an EU national arrived in the UK before or after 1st January 2021?

The reality is that you will not know this, nor are you required to find out due to guidance stating that right to work checks will not change until after 30th June 2021. The Government has not yet addressed the consequent predicament that employers are left in.

What are the rules on recruiting EU nationals under new immigration rules from 1st January 2021?

From 1st January 2021, a new points-based immigration system will come into operation which will apply to all non-British and non-Irish citizens. Under this system, anyone coming to the UK for work must meet a specific set of requirements for which they will score points. Visas are then awarded to those who gain enough points.

There will be various routes available for entry to the UK to work, including:

  • Skilled worker
  • Intra-company transfer
  • Health and care visa
  • Start up and innovator
  • Global talent visa
  • Graduate

How will the skilled worker route work?

Currently, foreign nationals from outside the EU can enter the UK under a Tier 2 visa, which involves them attaining a certain number of points, including sponsorship from an employer licensed by the government to sponsor. A similar system is set to be introduced from 1st January 2021, which has been labelled the ‘skilled worker’ route.

This is expected to be the route in which the vast majority of foreign nationals seek to enter the UK to work. There will be no cap on the number of individuals taken on through this route.

Applicants will need to achieve 70 points in total, made up of 50 mandatory points, and 20 tradeable.

All applicants will be able to trade characteristics, such as their qualifications, against a lower salary to get the required number of points. If the job offer is less than the minimum salary requirement, but no less than £20,480, an applicant may still be eligible if they have:

  • a job offer in a specific shortage occupation
  • a PhD relevant to the job
  • a PhD in a STEM subject relevant to the job.

Mandatory points

  • Job offer from an approved sponsor – 20 points
  • Job at the required skill level (RQF 3 or above (A Level and equivalent)) – 20 points
  • English language to a required level (this will need to be evidenced by completing a test or having a degree in English language similar to an English bachelors) – 10 points

In addition to this, the job offer must meet the applicable minimum salary threshold. This is the higher of either:

  • the general salary threshold set by the Government on advice of the independent Migration Advisory Committee at £25,600, or
  • the specific salary requirement for their occupation, known as the “going rate”.

It is expected that only the applicant’s basic salary will count towards the tradeable points criteria.

Tradable points

  • Salary of £20,480 to £23,039 or at least 80% of the going rate for the profession (whichever is higher) – 0 points
  • Salary of £23,040 to £25,599 or at least 90% of the going rate for the profession (whichever is higher) – 10 points
  • Salary of £25,600 or above or at least the going rate for the profession (whichever is higher) – 20 points
  • Job in a shortage occupation as designated by the Migrant Advisory Committee (MAC) – 20 points
  • Education qualification: PhD in a subject relevant to the job – 10 points
  • Education qualification: PhD in a STEM subject relevant to the job – 20 points

All jobs have a corresponding Standard Occupational Classification (SOC) code. Each SOC code has a designated skill level. This determines whether the job meets the requirements of the skilled worker route.

Examples of point attainment

1. Lab technician with a STEM PhD coming to the UK with salary offer of £21,000. The general salary threshold applies.

  • General salary threshold: £25,600
  • Job offer – 20 points
  • RQF 3 or above – 20 points
  • English language – 10 points
  • Salary – 0 points
  • Education qualification: STEM PhD – 20 points
  • Total – 70 points

2. Mechanical engineer coming to the UK with salary offer of £26,750. The “going rate” salary threshold for the profession applies.

  • General salary threshold: £33,400
  • Job offer – 20 points
  • RQF 3 or above – 20 points
  • English language – 10 points
  • Salary – 0 points
  • Job offer in a shortage occupation – 20 points
  • Total – 70 points

A highly skilled worker route is likely to be implemented in 2022.

How will the health and care visa work?

A Health and Care Worker visa is part of the skilled worker route. It allows medical professionals to come to or stay in the UK to do an eligible job with the NHS, an NHS supplier or in adult social care.

To qualify for a Health and Care Worker visa, individuals must:

  • be a qualified doctor, nurse, health professional or adult social care professional
  • work in an eligible health or social care job
  • work for a UK employer that’s been approved by the Home Office
  • have a ‘certificate of sponsorship’ from their employer with information about the role they’ve been offered in the UK
  • be paid a minimum salary – how much depends on the type of work they do.

How will the global talent visa work?

This route is already in use for non-EU nationals, having been introduced in February 2020 to replace the previous Tier 1 system. It allows talented and promising individuals in the fields of science, engineering, medicine, humanities, digital technology, and arts and culture (including film and television, fashion design and architecture) to live and work in the UK.

In order to apply under this category, individuals will require an endorsement from an approved endorsing body. The endorsing bodies include:

  • The Royal Society
  • The British Academy
  • The Royal Academy of Engineering
  • Tech Nation
  • Arts Council England
  • UK Research and Innovation (UKRI).

Once endorsed, foreign nationals will be given ‘highly flexible permission’ to work for organisations or be self-employed.

How will the start up and innovator route work?

This route has also been in place for non-EU nationals since Match 2019. It is available to individuals who are setting up a business for the first time or have industry experience and at least £50,000 to fund their venture.

Foreign nationals looking to use this route must have support from an approved endorsing body alongside the appropriate government department. Endorsing bodies can be a higher education provider or a business with a track record of supporting UK-based entrepreneurs.

How will intra-company transfers work?

To qualify, the applicant must:

  • be performing a role skilled to RQF level 6 (as opposed to RQF level 3, permitted under the Skilled Worker category).
  • be paid at least £41,500 a year or the going rate for the job, if higher, compared to £20,480 under the Skilled Worker route.
  • have been employed by the sending business for at least 12 months prior to the transfer.

Do I need to apply for a sponsorship license?

Currently, employers that wish to employ foreign nationals who are not covered by free movement of persons must have a sponsorship license to do so. From 1st January 2021, you must have a sponsorship license to employ a foreign national through some, though not all, of the immigration routes. The skilled worker route requires sponsorship. Sponsorship licences are not needed to employ an individual who has status under the EU Settlement Scheme.

Employers can sponsor an employee only if the role meets the minimum requirements. An employer who is sponsor can issue sponsorship certificates to foreign nationals who will then use it as part of their visa application.

How do I get a sponsorship license?

Sponsorship carries certain eligibility requirements. You must not have any unspent convictions for immigration offences or certain other crimes, such as fraud or money laundering. You must not have had a sponsorship licence revoked in the previous 12 months.

You should decide what licence you wish to apply for; currently, they differ depending on whether you are taking on staff temporarily or more long-term. This will need to be specified when you make your application. The longest you can sponsor a worker for is 5 years.

You will need to pay a fee to apply for a licence, which varies depending on the size of your organisation. Small companies will pay £536 for each application. Larger organisations will pay £1,467 for a licence to take on long-term staff, and £536 for temporary staff. You are likely to be considered a large company if your annual turnover is over at least £10.2 million and you have at least 50 employees.

It takes an average of eight weeks to process applications. You can seek a decision from the Government within 10 days, however this offer is limited to the first 10 applications in a day and costs an extra £500.

Licences are applied for via gov.uk.

What is involved in being a sponsor?

You need to appoint people within your business to manage the sponsorship process when you apply for a licence, and they will use the Government’s sponsorship management system (SMS).

The roles are:

  • authorising officer – a senior and competent person responsible for the actions of staff and representatives who use the SMS
  • key contact – your main point of contact with UK Visas and Immigration (UKVI)
  • level 1 user – responsible for all day-to-day management of your licence using the SMS

These roles can be filled by the same person or different people.  They must be based in the UK most of the time and not be a contractor or consultant contracted for a specific project. Other criteria also apply.

You can also appoint an optional level 2 user once you have your licence. This is an SMS user with more restricted access than a level 1 user, for example they cannot withdraw a certificate of sponsorship.

Suitability checks will be carried out on you and you employees. You may not get your licence in certain circumstances, including if anyone involved in sponsorship has:

  • an unspent criminal conviction
  • been fined by UKVI in the past 12 months
  • been reported to UKVI.

Employers who ae approved for a sponsorship licence will be added to the register of sponsors and will be able to issue certificates of sponsorship. You’ll get an A-rated licence if your application is approved but your rating can be downgraded, suspended or withdrawn if you do not keep up with the employer responsibilities. These are:

  • checking that your foreign workers have the necessary skills, qualifications or professional accreditations to do their jobs, and keeping copies of documents showing this
  • only assigning certificates of sponsorship to workers when the job is suitable for sponsorship
  • telling UK Visas and Immigration (UKVI) if your sponsored workers are not complying with the conditions of their visa.

You must also:

  • monitor your employees’ immigration status
  • keep copies of relevant documents for each employee, including passport and right to work information
  • track and record employees’ attendance
  • keep employee contact details up to date
  • report to UKVI if there is a problem, for example if your employee stops coming to work
  • report any significant changes in your own circumstances within 20 working days, for example if you:
    • stop trading or become insolvent
    • substantially change the nature of your business
    • are involved in a merger or take-over
  • tell UKVI if you’re changing your details, like your address or allocated roles
  • make sure that foreign workers under 18 have suitable care arrangements for their:
    • travel to the UK
    • arrival in the UK
    • living arrangements in the UK
  • get a letter from the parents of someone under 18 giving consent to the care arrangements.
  • get a Disclosure and Barring Service check on any of your workers who need it.

You may have to pay an additional charge when you assign a certificate of sponsorship to someone applying for a Skilled Worker or Intra-company Transfer visa. This is called the ‘immigration skills charge’.

You must pay the immigration skills charge if they’re applying for a visa from:

  • outside the UK to work in the UK for 6 months or more
  • inside the UK for any length of time.

The amount you need to pay is based on:

  • the size of your organisation
  • how long the worker will work for you, using the start and end dates on their sponsorship certificate

Small or charitable sponsors must pay £364 for the first 12 months, followed by £182 for each additional 6 months. Medium or large sponsors will pay £1,000 for the first 12 months and £500 for each additional 6 months.