Employment Law Update – July 2021

In this update we will be discussing:

  1. Workplace considerations in relation to the end of Coronavirus restrictions in England;
  2. ACAS Guidance on Hybrid Working;
  3. Potential new rules in relation to vaccinations for care home staff; and
  4. New right to work check requirements.

End of Coronavirus restrictions – employment implications

Return to work guidance

The government has published updated “working safely” guidance to apply from 19 July 2021, when England moves to step 4 of the roadmap. The guidance can be viewed at the following link:

https://www.gov.uk/guidance/working-safely-during-covid-19

The guidance, which will be kept under review, has been re-categorised into six sector-specific guides.   With the removal of the requirement to work at home “if you can”, the guidance recommends a gradual return to the workplace over the summer and suggests that employers should liaise with employees regarding return to work arrangements.

Given that many employees will continue to have health and safety concerns about returning to the workplace, the guidance states that employers should ensure that they remain responsive to workers’ needs and give extra consideration to people at higher risk.  Employers should support higher risk employees by discussing their individual needs and taking any additional precautions advised by their clinicians.  Consideration should also be given to the updated guidance on clinically extremely vulnerable individuals (see below).

The guidance sets out six priority actions businesses should take from 19 July 2021 to protect staff and customers, these include updating health and safety risk assessments, providing adequate ventilation, cleaning more often, turning away individual with Covid symptoms, enabling people to “check in” with test and trace and appropriate training/communication regarding Covid safety measures.

The specific recommendations under each priority action depend of the sector that a business operates in.  However, general requirements include putting measures in place to reduce contact between individuals and using screens or barriers where people are in close proximity. Workstations should be assigned to an individual where possible.  The use of face coverings by workers and customers is still encouraged in enclosed or crowded spaces.

The guidance makes it clear that it does not supersede employers’ existing legal obligations relating to health and safety, employment, and equalities duties in relation to employees, workers and customers. Rather, it is non-statutory guidance to take into account when complying with those existing obligations.   Employers will need to continue to be mindful of individual employee concerns about returning to work.  Behaving unreasonably in relation to employee concerns about a return to the workplace may lead to grievances and employment tribunal claims.

Updated guidance on clinically extremely vulnerable individuals

The government has also published updated guidance for individuals in England who have been identified as clinically extremely vulnerable to COVID-19.

The guidance does not say that clinically extremely vulnerable individuals will have any additional rights to work from home beyond 19 July 2021. However, employer must take their needs into account and are advised to follow the HSE guidance on employing vulnerable workers (https://www.hse.gov.uk/coronavirus/working-safely/protect-people.htm).

Employers who have employees who are clinically extremely vulnerable should consider how to keep such employees safe at work such as regular testing and other safety measures.  The guidance also suggests that where such an individual needs support, they can apply for Access to Work, the government scheme to provide support for the disability-related extra costs of working that are beyond standard reasonable adjustments.

We are able to assist with return to work arrangements including H&S risk assessment and communications with staff.

ACAS guidance published on “Hybrid Working”

On 13 July 2021, ACAS published new guidance on hybrid working to help employers consider whether it could be an option for their workplace and how to fairly introduce it. ACAS has also published the results of a survey showing that over half of employers expect an increase in employee requests for flexible working. The advice includes tips for employers on how to:

  1. Consult with staff on the practical considerations regarding introducing hybrid working.
  2. Support and manage staff who are hybrid working and ensure all hybrid workers are treated fairly.
  3. Create a hybrid working policy.
  4. Handle hybrid working requests from staff.

It advises employers to consider whether technology could assist hybrid working and issues such as health and safety, data privacy, cybersecurity, onboarding new joiners, and how teams will communicate remotely.

The guidance was developed after consultation with the government’s Flexible Working Taskforce which previously recommended that flexible working should be the default position for all workers.

We are able to assist with implementing hybrid working arrangements in your business including any necessary staff communication and update to contracts and policies.

Compulsory vaccinations in care homes

On 22 June 2021, the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (draft Regulations) were laid before Parliament.

The draft Regulations, which include a provision requiring staff employed in registered care homes to be fully vaccinated unless they are exempt, were approved by the House of Commons on 13 July 2021. The draft Regulations are the result of a consultation which ran from April to May 2021 on making it mandatory for staff in care homes with older adult residents to have COVID-19 vaccine.

The draft Regulations are subject to the affirmative procedure (requiring the approval of both Houses of Parliament) before they become law and will come into force 16 weeks after they have been made.  We will update you as and when the Regulations are due to come into force.

We are able to assists with preparation for this new requirement and any staff concerns relating to this new requirement.

Right to work checks – updated guidance published

Until 30 June 2021, employers were able to accept EEA passports as evidence of an individual’s right to work in the UK.  This is despite the fact that EEA nationals who entered the UK on or after 1 January 2021 do not have an automatic right to work in the UK and will not be eligible to apply for settled or pre settled status under the EU Settlement Scheme (EUSS).

From 1 July 2021, the position has changed and the Government has now issued new guidance for employers to assist them with navigating the significant changes to right to work checks affecting EEA nationals and their family members from 1 July 2021.  The guidance can be viewed at the following link and all employers are strongly recommended to familiarise themselves with the new requirements.

https://www.gov.uk/government/publications/right-to-work-checks-employers-guide

New requirements

In brief, from 1 July 2021, employers cannot accept EEA passports as evidence of right to work.  The list of acceptable documents (see List A and List B in the guidance) has been amended to remove such passports and has been replaced with a requirement to check an individual’s biometric residence card showing settled or pre-settled status under the EUSS.  Where the individual has pre-settled status, further checks will be required.

For EU nationals who arrived in the UK after 31 December 2020 and are not eligible to apply under the EUSS, the employer will need to establish the basis upon which they are eligible to work in the UK by reference to the updated employers’ guidance.

This does not apply to Irish nationals who can continue to use their Irish passport to establish the right to work.

Whilst manual checks of acceptable documents are permissible, employers should carry out the right to work check online where possible (although employers cannot insist on this).  The employer will need to obtain a “share code” from the individual and their date of birth.  The individual’s online record will confirm the type of work they are permitted to carry out and how long they are able to work in the UK.  The new Employer’s guidance includes a step by step guide to carrying out the online checks and record keeping requirements.

Retrospective checks

The new guidance does not require employers to carry out retrospective checks on employees who established their right to work in the UK by reference to an EEA passport prior to 1 July 2021.  A compliant right to work check will provide the employer with a statutory excuse against potential illegal employment for the duration of the employment.

However, it is possible that an employer may have inadvertently employed an individual unlawfully where an EEA passport has been accepted as evidence of right to work in the period up to 30 June for an individual who arrived in the UK after 31 December 2020.  This issue is not addressed in the new employer guidance.

Where an employer has relied on an EEA passport between 1 January and 30 June in circumstances where the employee has not confirmed that they have made an application under the EUSS, it may be advisable to conduct a further check to ensure that the employee is not working unlawfully.   It should be noted that with any right to work check, the employer cannot ‘blindly’ copy a document when it is known that the individual does not actually have the right to work.  Where an employer knows or has reasonable cause to believe there is no right to work (for example, because an EEA national arrived in the UK after 1 January 2021), in the worst-case scenario, they can be the subject of criminal prosecution as well as a civil penalty.

Transitional arrangements

The deadline for making an application under the EUSS was 30 June 2021.  However, the new guidance recognises that some employees may have failed to meet this deadline.  Until 31 December 2021, a pragmatic transitional measure has been put in place to cover existing employees failing to apply under the EUSS by 30 June 2021. Employers are instructed by the Home Office to do the following:

  1. Advise the individual to make a late application to the EUSS within 28 days and provide the employer with a certificate of application (CoA). If no CoA is received, the employer can no longer continue to employ the individual and must commence a dismissal process;
  2. If the CoA is received, the employer should contact the Home Office Employer Checking Service for a positive verification notice. This confirms that an employee presently has the right to work in the UK, whilst the application under the EUSS is processed. An employer can rely on this document to establish the statutory excuse for the period the notice is valid; and
  3. Carry out repeat checks before the expiry of each Positive Verification Notice as relevant, until such time as the EUSS application is decided and the individual can verify their EUSS status using an online right to work check.

It should be noted that the transitional measure does not apply to new employees due to start work on or after 1 July 2021. Where an individual needs to make a late application to the EUSS in that scenario, the Home Office advises employers not to start the employment until EUSS status has been granted and checked.

We are able to assist with ensuring that your business is compliant with the new right to work check requirements.

If you have any queries relating to the issue raised in this note, or any other employment law matters, please contact Taylor Walton’s employment law team on https://taylorwalton.com/employment