Virtual right to work checks to end from 17th May 2021

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 due to end this month.

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 17th May 2021?

The temporary provision to conduct these checks virtually is to be discontinued from 17th May onwards, 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 has 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 therefore does seem to go against this as it will result in more direct, in-person contact between organisations and their employees.

To this end, a number of industry bodies have contacted Home Secretary Priti Patel, asking her to reconsider the change. However, the government have so far not deviated from this and organisations will need to prepare for the change.

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.

Changes to the Furlough Scheme

From 1st May, there are to be a number of changes to how the Job Retention Scheme works. 

Eligibility for being furloughed

Currently, employees cannot be furloughed if they were not employed past 30th October 2020, and even then a PAYE Real Time Information (RTI) submission must have been made to HMRC between 20th March 2020 and 30th October 2020, notifying a payment of earnings for that employee.

This is to change. For pay periods that start on or after 1st May 2021, employees who were employed on 2nd March 2021 can be furloughed, provided the organisation has made a PAYE Real Time Information (RTI) submission to HMRC between 20th March 2020 and 2nd March 2021, notifying a payment of earnings for that employee. The shift in eligibility from 1st May 2021 onwards was confirmed in Government guidance on 3rd March 2021, presumably as a result of the extension of the JRS until the end of September 2021.

The knock-on impact of this is that organisations will be granted much more flexibility in furlough decisions in the future; they will be able to furlough those who were recruited between 31st October 2020 and 2nd March 2021, meaning the scope for furloughing staff is going to be wider.

Organisations will not have to have previously claimed for an employee before 2nd March 2021 to claim for periods from starting on or after 1st May 2021

Calculating claims for periods staring on or after 1st May 2021

Due to the change in eligibility highlighted above, the government is outlining updated guidance on how to calculate furlough pay.

It should be remembered that the government will still provide 80% of furloughed staff wages for the time they are not working in May and June 2021. They are not due to start reducing the amount they provide until 1st July 2021.

Claiming for staff previously made redundant

For periods beginning on or after 1st May 2021, organisations will no longer be able to furlough staff that were previously made redundant.

Furlough after TUPE

From 1st May 2021, organisations are able to furlough employees if they were included on a PAYE Real Time Information (RTI) submission to HMRC on or before 2nd March 2021.

Considering introducing Hybrid working?

As hybrid working continues to gather popularity, this article will be the first in a series exploring the pros and cons, how to implement it, and options for the companies that can’t.

What is hybrid working?

Hybrid working is where staff conduct a mixture of working from home and from the office. Whilst it is not a new concept, as the option to work from home through flexible working existed prior to the pandemic, it is something that has become much more popular in recent times. Staff that have successfully worked from home during the last 12 months may want to continue doing so going forward and respond poorly to a full-time return to the workplace. Hybrid working could therefore be a compromise for this, permitting staff to work form home whilst also maintaining a degree of office attendance.

Benefits of hybrid working

Guidance across Britain remains that staff should work from home if they can, however organisations may be expecting some push back from employees when they are asked to return to the workplace and indeed could already have seen this last year. As we emerge out of the pandemic, employees may be increasingly thinking about their long-term career goals, and flexibility in their jobs could be a key aspect of this. Hybrid working could therefore be a solution to this issue.

The increased flexibility with hybrid working could be well received by employees, helping them to better work towards a work-life balance, something that is becoming increasingly popular with a modern-day workforce. This could be crucial in maintaining morale and staff retention as we go forward, especially if employees are still anxious about a full-time return to the workplace.

It should also be remembered by organisations that if they do not explore hybrid working options, their competitors may be willing to do so, something that could deprive them of otherwise valuable members of staff.

Cons of hybrid working

Of course, hybrid working isn’t a perfect solution for all businesses, and indeed some may see more drawbacks than others. For example, some roles may be difficult to undertake from home, even on a part-time basis, and managers will need to take this into account. There is also the issue of staff feeling more isolated when working from home, although hybrid working may go towards mitigating this issue.

Staff may also be more difficult to manage remotely, with the potential encouragement for them to see the days they aren’t in the office as days where they need to work less hard. To this end, it will be important for management to monitor staff in these situations and be prepared to take further actions should there be issues in productivity, which we will explore in the next article.

It should be remembered that not all staff may want to go down the hybrid working route, and indeed may feel very demotivated by a move to do so.

Conclusion

In all, the introduction of hybrid working comes with varied pros and cons, but it is something that many organisations may increasingly be looking to introduce.

Shielding to end on 1st April

Due to the reintroduction of lockdowns across Britain, shielding returned in England, Scotland and Wales. However, it has now been confirmed that it will once again be paused in the coming weeks. 

As part of the Prime Minister’s roadmap out of England’s lockdown, it was announced that clinically extremely vulnerable people should continue to shield until the end of March 2021. This has been further confirmed by the Health Secretary, Matt Hancock, at a press conference on 17th March 2021. At this conference he clarified that shielding would end in England from 1st April 2021. He also announced that in the next two weeks letters will be sent to those on the shielding list asking them, even though shielding is ending, to keep social contact at a minimum and stay at a distance from others.

In Scotland from 26th April 2021, people who are shielding can return to work where homeworking is not possible. Similarly, the Welsh Government has confirmed that, from 31st March 2021, shielding measures are to be paused. This means that those who have previously been advised to shield can return to work if they cannot work from home, as long as the business is Covid-secure.

Shielding was first introduced on 29th March 2020 for clinically vulnerable people as a measure to both protect said individuals and relieve pressure on the NHS at the peak of the pandemic. Those advised to shield were told to stay at home as much as possible and not to attend work, even if they were unable to work from home.

Organisations may be faced with further questions from affected employees about possible arrangements that can be made in light of their impending return to the workplace. We advise that organisations should:

  • prioritise homeworking, where possible – the guidance in England, Scotland and Wales remains that people who can work from home should do so. The review date for homeworking guidance is still unknown so organisations should prioritise this for as long as is necessary
  • take the time to listen to employees’ concerns and act accordingly, in a manner that benefits both the employee and the business as a whole
  • if homeworking is not possible, remember that the furlough scheme has now been extended until the end of September 2021 so consider putting affected staff on furlough. Organisations can do this if there has been a decline in business demand; otherwise, staff can be put on statutory sick pay
  • if returning staff to the workplace is a necessity, publish risk assessments online that show measures the organisation is taking to prevent a coronavirus spread
  • reassure staff who are shielding that the workplace is Covid-19 secure by communicating the reasonable adjustments put in place to protect them.

In the workplace, organisations can implement the following provisions before returning shielded staff to work:

  • avoid face to face seating arrangements in the office by changing office layouts
  • change shift patterns to reduce the number of staff on duty at any given time
  • make virtual communications a means of conducting training or meetings
  • put in place rules for managing social spaces/communal areas
  • promote regular hand washing, sanitising and workspace cleaning
  • being more attentive to staff mental health.

Reassuring staff

It is advisable for organisations to send out letters and/or emails (to personal email addresses) detailing each employee’s proposed return date, the steps being taken to keep them safe, and offer opportunities for employees to express any concerns that they may have – or to request alternative working options.

The appointment of a communications coordinator could help towards managing the resulting impact of this as it assures staff that the business is dedicated to making sure they are well considered. This could also help to ensure that the business is aware of any problems with shielded employees who have been contacted about returning to work. This too will facilitate informed decision making on the part of the employer and gives affected employees a point of contact for any return to work queries.

Constructive unfair dismissal may arise if an employee who returns to work is forced to resign because the employer has not reasonably supported their transition. Supporting an employee’s transition from having to shield to returning to the workplace can vary from ensuring that Covid-secure measures that especially protect those who are clinically extremely vulnerable are in place, to making sure they are kept up to speed with anything they may have missed whilst they were gone (to ensure that they can carry out their role effectively from that point onwards). Shielders who return to work may also require further ongoing support and adjustments over time.

Making staff redundant

A survey of 6,000 people conducted by Citizen’s Advice Bureau has shown that those who are shielding, or have shielded in the past, are twice as likely to be made redundant than any other employee. Organisations should be aware that making clinically extremely vulnerable employees redundant simply because they are/were required to shield may give rise to successful claims of unfair dismissal. Redundancy situations occur where the need for a particular role has either ceased or diminished, not because an individual is unable to perform their role for any reason – including the requirement to shield.

Instead, organisations can find alternative ways to manage the situation – eg homeworking, using annual/unpaid leave, or furlough. If organisations have no other option but to render a role being carried out by a shielder redundant, they must ensure that they follow a fair procedure and potentially make adjustments to this procedure for those who are disabled.

Where disability is concerned, organisations should keep in mind that some clinically extremely vulnerable people may also be classed as being disabled under the Equality Act 2010, thus potentially giving rise to additional claims of disability discrimination if a fair procedure is not followed.

In summary

Organisations should prioritise homeworking, furlough, or statutory sick pay and take the specific circumstances of an anxious employee into consideration before taking the decision to return them to the workplace. Where there are multiple employees shielding, there cannot be a ‘one size fits all’ approach to returning them back to work as each employee will have different reasons for being concerned about returning – or some none at all. For example, one flexible working arrangement will not always work for everyone.

Organisations will have to communicate effectively with each affected employee to ascertain how best to move forward in ways that benefit both the employee and the wider business.

Furlough scheme extended to the end of September 2021

The Job Retention (furlough) Scheme was originally established in March 2020 to assist organisations with retaining staff through business restrictions put in place as a result of the coronavirus pandemic. Since then, it has been extended numerous times in response to the developing situation with the virus. Now, with plans for reopening businesses over the next few months being announced across the UK, the government has confirmed that the scheme is to be extended again, this time until 30th September 2021.

As before, furloughed workers will still get 80% of their wages for the time in which they do not work, subject to a monthly maximum. However, from July, the government will start reducing their contribution to the scheme, similar to the way they started to phase it out last year before it was extended at the end of October.

From July 2021, the government will contribute 70% of wages for unworked hours, with organisations asked to provide the remaining 10%. In August and September 2021, they will contribute 60%, meaning organisations must provide 20%.

If all goes to plan, this news means that the furlough scheme will remain an option for eligible organisations even after the lifting of all lockdown restrictions in England on 21st June, something that may occur sooner in Scotland and Wales but has yet to be confirmed. Presumably, this is to assist organisations in gradually working towards pre-pandemic normality whilst also allowing for any delays to England’s roadmap out of lockdown that may occur if the government’s tests for easing restrictions, at any stage, are not passed.

 

Plans for lifting the current lockdown revealed

Prime Minister Boris Johnson has set out his plan for lifting the current lockdown, balancing continued caution with the need to restore freedoms and boost the economy.

Data not dates will be the watchword, Mr Johnson said, so the possibilities listed below are all subject to change if evidence shows that new problems have arisen.

Four tests

In addition, the lockdown will be lifted in stages subject to the following tests:

  • the vaccine rollout continues to be successful;
  • the number of hospital admissions and deaths continues falling;
  • pressure on the NHS does not reach un acceptable levels; and
  • consideration is given to the impact of any variants of the virus.

Four steps to leaving lockdown

To allow for proper assessment of the impact and to allow people time to prepare, there will be “at least” five weeks between each of the following four steps:

Step one

Step 1 from 8th March 2021 will be focused on schools. Pupils in all schools and further education settings will return to face-to-face teaching with breakfast and after school clubs reopened together with sporting activities for children “where necessary to help parents to work”.

One person from outside someone’s household can be met socially outside the home and preparations will go ahead for elections to take place on 6th May. In addition, every care home resident will be able to nominate one visitor from 8th March.

From 29th March 2021 , the rule of six will return (including in private gardens). Tennis and basketball can resume and outdoor pools reopen. People must still work from home if possible but there will no longer be a legal requirement to stay at home.

Step 2

Step 2 from 12th April will mean, if the above is working and passing the four tests, that hairdressers, nail salons, non-essential retail, gyms, libraries and holiday lets can re-open. Pubs and restaurant can open for outdoor service with no curfew and no requirement for alcohol to be accompanied by a scotch egg or any other substantial meal.

Step 3

Step 3, no earlier than 17th May, will see the return of the rule of six for indoor meetings with groups of up to 30 allowed in outdoor settings. Pubs and restaurants can resume serving indoors and theatres, cinemas and concert halls will reopen as will some sports stadia (up to 10,000 people or a quarter of the stadium’s capacity, whichever is the lowest). Up to 30 people can attend weddings, receptions, funerals and wakes.

Step 4

Step 4, finally, and no earlier than 21st June, the last restrictions will be lifted including on weddings and nightclubs. However, the removal of restrictions on large events and performances may involve using testing to reduce the risk of infection.

Weather Warnings

Vast weather warnings across the UK have been announced due to a blast of cold air from the east. Adverse weather, and the knock-on effects, can cause significant disruption to organisations’ business operations and affect staffs’ ability to safely travel to work.

Being dubbed by some as ‘Beast from the East 2’, wintery weather is causing disruption to certain parts of the country, and will continue to do so until at least Wednesday this week, and organisations must be ready for this, particularly if their employees are not currently working from home.

Closure of the workplace 

Weather conditions, or the after effects of extreme weather, may lead to a complete closure of the workplace or separate office locations. Unless there is a contractual right to be placed on unpaid lay off, staff are entitled to be paid in full for any hours they would have worked had the workplace been open. If the organisation chooses to open later or close earlier because of the weather conditions, employees are also entitled to be paid for this time even though they have carried out less work than normal.

If the organisation closes due to bad weather, it should not seek to place employees on furlough under the Job Retention Scheme unless it is eligible to do so. In other words, the organisation will need to show that they have seen a business downturn as a result of the pandemic; enforced closure due to weather will not be enough.

Staff traveling into work 

Staff are expected to make every reasonable effort to get to work, even if unable to arrive on time, unless they are notified in advance that they should not travel to work. Lateness does not have to be paid for, as normal, although the organisation may wish to agree with the employee to make up the time lost to ensure their pay is not docked.

Where staff are unable to make it in to work and their workplace is open for business, they are not entitled to be paid unless their contract says otherwise. This is a harsh stance to take, however, as the absence isn’t due to their actions and is likely to be because of travel or safety reasons. There are options that can be considered by the organisation. The first is to consider allowing employees to take short-notice annual leave for this period to ensure they are still receiving full pay, although they will use up some of their holiday entitlement. Other options include using banked lieu hours or making up the time at a later date.

Working from home

Due to current coronavirus restrictions across the UK, staff should be working from home if they can and organisations should be working to facilitate this where possible. In normal times, allowing staff to work from home during periods of bad weather can allow them to continue working and receiving their normal salary despite workplace closure. If their ability to do this is disrupted due to the weather, staff should still be paid as normal.

Outside disruptions 

If the workplace remains open and the employee is able to travel to work, there may be circumstances where the employee is absent from work because their childcare arrangements have been disrupted by the weather. Employees have a statutory right to a reasonable amount of time off to deal with emergency situations involving dependants and this will cover the breakdown in care arrangements. This time off is usually unpaid, although this will depend on the organisation’s policy.

 

Flexible working opportunities for all

New research by the Chartered Institute of Personnel and Development (CIPD) has revealed that nearly half of employees do not have flexible working in their current role.

In response, and to promote fairness and inclusion at work, the CIPD is launching a new campaign, #FlexFrom1st, encouraging employers to support flexible working for all.

To reinforce these principles, the Institute is also calling for a change in the law in order to make the right to request flexible working a day-one right for all employees.

The survey of over 2000 employees found that while the current pandemic has driven a huge increase in working from home, 44% of employees have not worked from home at all since the beginning of the crisis.

92% of those employees say that this is because the nature of their job does not allow them to.

Around a fifth (19%) of employees say they work for organisations that do not offer any flexible working arrangements while twice as many (41%) say it is unfair that some people can work from home while others have to continue to attend their place of work and have little flexibility in how they work.

CIPD Chief Executive, Peter Cheese, said: ‘We need a new understanding about what flexible working is and we need employers to embrace flexible working arrangements beyond home working, to give opportunity and choice to all. Employees may not always be able to change where they work, but they should have more choice and a say in when and how they work.’

Those without access to flexible working are around twice as likely to be dissatisfied in their job, compared to those who do, he pointed out.

CIPD research has clearly identified the benefits of flexible working arrangements for employers and employees: from improved wellbeing and work-life balance to greater productivity.

Full details of the “Flex from 1st” campaign can be found here.

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.