Clocks change this weekend

Clocks spring forward this weekend

In the UK the clocks go forward one hour at 1am on Sunday 26th March 2023 when we move to British Summer Time (sometimes called Daylight Saving Time). Most people will miss when the clocks actually change, although there will no doubt be the brief moment of confusion in the morning when we try to work out what the time actually is.

For some, however, who work overnight, they will see and feel the effects of this. So, what should employers do for those that are working overnight between Saturday 25th March and Sunday 26th March 2023?

Impact on pay and working hours 

When the clocks change in October, employers are faced with concerns about working an extra hour and how to adjust pay for that time, especially for those paid minimum wage. In springtime, however, the concern is more likely to be that employees will technically be working an hour less in their shift as a result of the clock change; for example, an employee working an eight-hour shift will actually only work for seven hours.

Payment for this time will come down to what is written in the contract of employment. If it sets out that the worker is entitled to hourly pay, paid for every hour they work, then they will only receive payment for seven hours. If, however, the employee is salaried, they will more than likely receive their usual pay regardless of whether they work one hour less. This is because a salaried employee is more likely than an hourly paid employee to be required to work extra hours without additional pay and to be entitled to pay even if they work fewer hours.

Be consistent 

Subject to any contractual constraints, it is up to employers how they deal with this matter as long as they are consistent and fair in their decision. They may, for example, ask the employee to work an extra hour or simply “write it off”.

Be prepared 

Employees due to work when the clocks go forward should be reminded that this will happen and told how their employer will be dealing with it. In particular, those due to start work early on Sunday morning are most likely to be caught out, so a reminder of the rules on lateness would be appropriate, as well as encouraging them to prepare for the change.

National Minimum Wage, National Living Wage, SSP, SMP etc. 2023/2024 rate increases

National Minimum Wage, National Living Wage, SSP, SMP etc. rates 2023/2024

The Department for Work and Pensions has published its annual rate increases for 2023/2024.

The annual increase to the National Minimum Wage and National Living Wage are as follows:-

  • 23+ – £10.42 (previously £9.50)
  • 21-22 – £10.18 (previously £9.18)
  • 18-20 – £7.49 (previously £6.83)
  • 16-17 – £5.28 (previously £4.81)
  • apprentices – £5.28 (previously £4.81)

The accommodation offset will be £9.10 per day (previously £8.70).

The rate for Statutory Maternity Pay (SMP), Statutory Paternity Pay (SPP), adoption pay (SAP), shared parental (ShPP) and parental bereavement (SPBP) pay will increase to £172.48 per week (previously £156.66). The rate for Statutory Sick Pay (SSP) will increase to £109.40 per week (previously £99.35).

These changes will take effect in April 2023.

Bank holiday confirmed for date of Queen Elizabeth II funeral

The government has announced that Monday 19 September 2022 will be a national bank holiday in all parts of the UK for Her Majesty Queen Elizabeth II’s State Funeral. This will also mark the last day of the period of national mourning following The Queen’s death on 8 September 2022.

Government guidance provides that this bank holiday can be treated the same as other bank holidays, which means that some employers may choose to treat this the same as other additional bank holidays. There is no statutory right to time off so employers will need to review their contracts of employment to determine whether their staff are entitled to time off on this additional bank holiday, for example:

  • contracts which say employees have a right to 20 days’ annual leave plus time off on 8 public/bank holidays, (or 19 days plus 9 bank holidays in Scotland) where the bank holidays are listed and there is no extra flexibility in the wording, will not have an automatic right to time off
  • contracts which give a right to 20 days’ annual leave plus 8 public/bank holidays but do not list the bank holidays gives the employer some flexibility to move leave around, i.e. the employer in this scenario could give staff this extra day off but require them to work on another public/bank holiday
  • employees who have a contractual right to all public/bank holidays will be entitled to the extra day off
  • employees whose contracts give them 28 days’ annual leave including all public/bank holidays have a right to the extra day’s leave but it will be deducted from their 28 days’ annual leave so effectively they will have fewer days on which to ‘choose’ to take leave.

Employers should check their contracts carefully for any other flexibility in the wording such as “8 public/bank holidays as listed, or other days as determined by us” which may allow the employer to give staff the extra day off but require them to work on another public/bank holiday.

Of course, where contracts do not include an automatic right to time off, employers can choose to give their employees an additional day of paid leave or staff can make an annual leave request in the usual way. In a press release published on 10 September 2022, the government encourages employers to respond sensitively to requests from workers who wish to take time off. Employers should be mindful that national events can affect individuals in different ways and can have an impact on their personal health and wellbeing.

For workers who are required to work on the day of the funeral, there are no statutory rules regarding extra pay on bank holidays. This will depend on the wording of the worker’s contract and any custom and practice that has been set on previous bank holidays.

The government currently has no plans for this additional bank holiday to mark The Queen’s funeral to become an annual bank holiday. It is yet to be decided if there will be a bank holiday for the coronation of His Majesty King Charles III which is not expected to take place for some time.

Covid related sick pay comes to an end

In line with the Government’s strategy to “live with Covid”, in England at least, many of the Covid restrictions (and support) have come, or are coming to, an end. February saw the end of the legal requirement to self-isolate and the need for face coverings, and now March brings the end of special SSP rules.

Since 13th March 2020, employees off work due to Covid, either because they themselves had it, had symptoms, or had contact with someone who did, have been paid statutory sick pay (SSP) from day one of their absence (subject to the absence being at least 4 days in length).

The SSP rebate scheme, originally opened in March 2020, closed 30th September 2021 and reopened between 21st December 2021 and 17th March 2022, enabled employers to claim back for up to two weeks of these SSP payments per employee, relieving some of the burden of forced isolation and absence from the business.

What’s happening from 24th March 2022?

SSP Rebate Scheme

This is the last day eligible employers can make or amend claims for SSP paid for Covid-related absences between 21st December 2021 and 17th March 2022. Failure to submit a claim by the end of 24th March will mean employers will not be able to claim the rebate.

End of Covid-related SSP provisions

A number of changes were made to SSP rules in light of the pandemic. These come to an end on 24th March 2022. These include:

  • payment from the first day of the absence
  • payment for isolating due to Covid, Covid symptoms or contact with Covid, when the individual is not actually unwell.

What does this mean for employers?

This puts employers in a tricky position. In England the legal requirement to self-isolate was scrapped on 24th February 2022. As such, they will need to decide what to pay employees whilst they are off work following the guidance. As SSP rules are applied across Great Britain, it remains to be seen what will be put in place in Wales and Scotland, as self-isolation in Wales does not end until 28th March 2022, and advice in Scotland is still to isolate.

For many, they can return to home working temporarily. For those that are left too unwell to work due to the virus, they will get whatever sick pay would normally be due. The biggest problems arise for those that cannot work from home, but are well enough to work. In this case, employers may choose to extend sick pay to these people to reduce the risk of Covid transmission in the workplace.

Workers in England no longer told to work from home

Government announces workers in England no longer told to work from home

What are the current Plan B rules?

There are 3 key measures under the government’s current Plan B restrictions:

  • Compulsory face coverings in most indoor public places
  • Advice to work from home where possible
  • Mandatory Covid passes for entry into nightclubs and large events (e.g. football matches)

These restrictions were set to expire on 26 January 2022.

What has changed?

The government announced a Covid update this afternoon – these changes apply in England only.

The guidance to work from home will be removed from today, 19 January 2022.

From 27 January 2022, the legal requirement to wear a mask in public places will be removed – although they will still be recommended in some places. Boris Johnson intends to trust the British people to make the right choices.

Also from 27 January 2022, the use of Covid passes will no longer be mandatory but businesses can choose to use them if they want to.

From tomorrow, 20 January 2022, children don’t have to wear face masks in classrooms.

A long-term strategy on living with Covid will be set out in the coming weeks.

Are any Plan B measures staying?

There will still be a legal requirement to self-isolate if you test positive for Covid.

Self-isolation rules are due to expire on 24 March 2022 – the government doesn’t expect to renew these and the expiry date may be brought forward if the data supports this.

What does this mean for employers right now?

Employers should update their employees and prepare their workforce for their return.

A risk assessment should be completed to ensure all necessary Covid-secure measures are in place – e.g. one-way systems, hand sanitizers, screens/barriers, regular cleaning, social distancing, mask wearing reminders etc.

Many employers will have already gone through the process (sometimes multiple times) of sending staff home then welcoming them back to the workplace.

Where employers have already completed such processes, it may be useful to assess what worked well and what didn’t previously. Reflective exercises can ensure effective measures are put in place this time round to make the return a success.

Employers should have supportive conversations with any employees who are hesitant about returning to the office.

Reasonable adjustments (e.g. temporary hybrid arrangements to phase return to full-time office working) can go a long way in ensuring employees feel comfortable and supported.

Allowing flexibility at this stage can minimise absence levels, staff turnover and protect motivation, satisfaction and productivity rates later down the line.

Where employees unreasonably refuse to return to the workplace, employers may be able to treat this as a failure to follow reasonable management instructions and manage it as a normal conduct issue but they should first adopt a supportive tone, to see what is causing the hesitancy and if there is a way the employee and employer can work together to reach a conclusion which is beneficial for all.

2021: HR Year in Review

2021: HR Year in Review

2021 has been a year of fast-moving changes. Here we look back on some of the challenges employers have had to deal with over the last year.

Covid

  • The closure of the furlough scheme on 30 September 2021,
  • The ending of the shielding programme on 15 September 2021,
  • The roll out of mandatory Covid vaccines for CQC-regulated care homes in England.

Mandatory vaccinations are being extended to wider health and social care settings from April 2022. This includes public (NHS) and private organisations and will affect all frontline workers who have direct, face-to-face contact with service users, in both clinical and ancillary roles.

  • “Plan B” saw a return to compulsory face coverings in most indoor places, guidance to work from home and the introduction of Covid-passes in nightclubs and large events.

It has also been confirmed that booster doses of Covid jabs will be included within the scope of full vaccination as soon as reasonably possible. Organisations may therefore need to review the existing Covid-status of their workforce to include this.

Statutory Entitlements

  • Carer’s leave to be introduced as soon as parliamentary time allows. This allows employees with caring responsibilities to take up to one week (5 working days) of unpaid leave per year from day 1 of employment.
  • Flexible working. Consultation into changing this has now closed. Proposed changes include making it the default position, a day-one right to submit a request and allowing more than one request per year. It also reviewed the existing eight fair reasons for refusal and assessed the timeframe employers have to respond. An outcome is expected early 2022.
  • The Real Living Wage rates were increased in November 2021 to £11.05 (London) and £9.90 (rest of the UK).
  • New National Minimum Wage rates have been confirmed for April 2022: 23+ year olds = £9.50; 21-22 year olds = £9.18; 18-20 year olds = £6.83; 16-17 year olds = £4.81; Apprentices = £4.81.
  • New statutory rates have also been proposed (and are likely to come into force) as follows: SMP, SShPP, SAP, SPP, SPBP £156.66, SSP £99.35, LEL £123.

Equality and Diversity

  • Gender pay gap reporting has returned with a 6-month extension to publish 2020/2021 reports, until 5 October 2021. Normal April deadlines apply from now on.
  • The CIPD called on the government to introduce mandatory ethnicity pay gap reporting by 2023.
  • A cross-government Menopause Taskforce was established, looking at the role education and training, workplace policies and peer groups for menopausal women can play in supporting women. Many organisations signed the Menopause Workplace Pledge, showing their commitment to recognise that the menopause is an issue and women need support.

Brexit

  • The UK officially left the European Union on 31st December 2020, which saw significant changes to right to work checks and immigration rules. Applications for settled status closed at the end of June 2021, subject to limited extensions.
  • A new points-based immigration system saw an increase in employers applying for a sponsorship licence, to employ those to whom settled status doesn’t apply.

IR35

From 6 April 2021, tougher requirements were put on employers to decide the status of contractors, freelancers and consultants, to ensure that employers were not evading their employment related tax liabilities. If contractors are “deemed workers” i.e they fall inside of IR35, they can no longer be paid “off payroll”. Instead, they will be paid via payroll after tax and NI is deducted. Previously, it was the contractor’s responsibility to assess their tax status, but this now falls on the organisation. It is worth noting however that the status of workers for tax purposes is not the same as in employment law.

Government proposes to extend flexible working requests

The Government has launched a consultation into changing current flexible working legislation. This is open until 1st December 2021, where the responses will then be reviewed and a decision on any changes confirmed. Until then, all current rules and processes will remain in place as usual.

Its proposal is to introduce measures to help make flexible working the default, unless employers have good reasons not to. It aims to bring more employees into the scope of the legislation by making the right to request flexible working available from day-1 of employment. The government has recognised that external events (for example, the Covid-19 pandemic and its associated impact on home-life and caring responsibilities) are not limited to people who have worked in their roles for 6 months. It has also been raised that underrepresented groups, like new parents and disabled workers, are more in need of flexible working opportunities. However, there is a wider belief that the introduction of these measures will benefit productivity, motivation, retention and competitiveness, as well as help attract more talent to organisations.

The consultation is also assessing whether the current 8 business reasons for refusal are still valid, although the assumption is that fundamental changes are not needed in this area.

A separate assessment is being completed into the administrative processes associated with managing flexible working requests; specifically, the time scales for responding and the ability for employees to make more than one request per year, which is currently all they are entitled to. The government is considering allowing employees to submit a higher number of requests, to remove any unnecessary barriers to accessing flexible working arrangements amongst those whose personal situations might be impacted more frequently than every 12 months.

Similarly, the statutory Code of Practice outlines that employers should respond to requests within a 3-month period but the government is debating whether to make it a requirement to respond more promptly and the effect on organisations if this was introduced. Organisations should already be prepared for processing flexible working requests without any unreasonable delays, with many of them not needing the full 3 months to respond. As such, it is expected that this change, if implemented, won’t have a detrimental impact on organisations. But, employers may need to be prepared to manage a surge in requests being submitted by their workforce. This might involve hiring more HR personnel and undertaking training courses to ensure managers know how to deal with requests efficiently.

In addition, if the proposal is approved, employers should be prepared to amend their current policies and procedures on flexible working, to ensure they are compliant with the new legislation. We await the outcome of the consultation to see the exact impact on current practices and better understand what organisations will have to do moving forwards.

Should digital Right to work checks continue permanently?

Over 300,000 people a week could have been delayed in starting work if the Home Office had refused to allow Right to Work (RTW) checks to be conducted digitally now that the final stage of unlocking has been delayed.

This warning came from REC (the Recruitment and Employment Confederation) and refers to the fact that, since 30 March 2020, digital RTW checks have allowed employers to hire new staff without having to meet them in person to check documents.

This system has, the Confederation argues, kept people safe, saved companies time and resources during the pandemic and helped to slow the spread of Covid-19. It also levelled the playing field between UK and foreign nationals by allowing digital checks for both, rather than just for foreign nationals.

The Home Office seems to have agreed as it has now announced that digital right to work checks will be extended until the end of August.

It was, it said, “reviewing whether there are changes we can make to the right to work scheme to increase the digital checking aspects, including through the use of specialist technologies”.

The REC was quite clear what those changes should be with Chief Executive Neil Carberry welcoming the new concession but arguing that the next logical step should be a move to a permanent digital system.

“It makes no sense for Government to shoot themselves in the foot and return to mandating in-person checks when the use of digital checks has been a success story of the pandemic,” Deputy CEO Kate Shoesmith said.

She also highlighted the contradiction of the Government seeking to return to mandating in-person checks for UK nationals, thereby disadvantaging UK jobseekers in the labour market, while also trying to incentivise employers to not rely on workers from abroad.

End of virtual right to work checks postponed

Last week, we published the below article on virtual right to work checks, outlining plans for them to come to an end on 17th May 2021. However, the government have since confirmed that this will be delayed until 21st June 2021. Please read below for more. 

As a result of the pandemic, last year the government made it possible for organisations to conduct right to work changes virtually on a temporary basis. This is now due to end on 21st June 2021. 

What are right to work checks?

To ascertain whether an individual originally from overseas (including the EU) has the right to work in the UK, and to prevent illegal working, organisations should carry out right to work checks. In normal times, there are three steps they must complete. These are:

  • obtain original right to work documents (such as a passport) from the individual
  • check the validity and authenticity of the documents in the presence of the individual
  • copy the documents and keep a secure, dated copy which includes the date for follow-up checks.

Alternatively, from 29th January 2019, organisations can use the Home Office’s online right to work checking service to carry out immigration checks.

What changed due to the pandemic?

In 2020, the government changed the right to work checking process so that organisations did not need to meet with staff directly. Under this temporary system, a scanned copy or photograph of documents necessary to prove a right to work should be sent to the organisation via an email or mobile app.

A video call is then arranged with the worker, where they are asked to present their original documents to the camera. These documents are then compared with the digital versions previously sent. The date of this check is recorded and noted as ‘adjusted check undertaken on [insert date] due to COVID-19’.

Previously, it was expected that organisations would need to carry out a retrospective check through the usual method outlined above once this temporary option was stopped, however the government has since confirmed that this will no longer be the case.

What’s happening from 21st June 2021?

The temporary provision to conduct these checks virtually is to be discontinued from 21st June onwards (previously 17th May), meaning that, generally, in-person checks will need to be conducted. Whilst video calls will still be permitted for this, a crucial difference is that the organisation will need to be sent the original versions of the important documents, not copies, which may cause inconvenience for the employees in question.

The change to this guidance originally caused confusion for organisations due to the fact that working from home guidance is not changing. Currently, it is expected that, at least in England, staff will continue to be encouraged to work from home if they can until at least 21st June 2021. This reversion to the usual right to work checking process prior to this date therefore did seem to go against this as it would have resulted in more direct, in-person contact between organisations and their employees.

In response, a number of industry bodies contacted Home Secretary Priti Patel, asking her to reconsider the change. It has since been confirmed that the change will be pushed back to 21st June 2021.

New right to work checking system expected

It should be remembered that a new right to work checking system is currently expected to come into force from 1st July 2021 due to Brexit, as this is when the grace period between the UK and the EU comes to an end. The government has yet to confirm what this will involve.

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.