Key employment law developments: March 2020

Coronavirus (Covid-19): employment implications

The new novel coronavirus (Covid-19) presents a significant challenge for employers all over the world. As things stand, the UK government has now rated the risk level to the UK as high and the situation is developing daily. At the same time, the government has now updated its advice, such that anyone experiencing a high temperature or new persistent cough should self-isolate for 7 days (see here).

The key issues for employers include:

• what practical steps should be taken to ensure that you fulfil your duties of health and safety and care to employees, for example, planning for operational challenges (and for regulated firms in line with the FCA’s expectations as per their recent statement);
• how to deal with employees in self-isolation or quarantine and payment obligations. The UK Government has announced that where an employee is asked to self-isolate by a medical professional (or NHS 111) they are entitled to statutory sick pay from day 1 and that there will be an alternative to a fit note which can be used during the outbreak. It will also refund the cost of providing SSP to small employers (limited to two weeks per employee) and intends to set up a repayment mechanism;
• planning for homeworking, and as well as requests from employees to work from home (particularly those who might be immunosuppressed) or who need time off to take for dependents due to school closures;
• implementing policies on travel restrictions, both in relation to business travel and personal travel;
• how to deal with suspected or confirmed cases within the workforce and communicate appropriately with other staff whilst also complying with data protection restrictions.

To assist employers dealing with the outbreak of coronavirus in the UK and across our international network, see our employment issues page for how to deal with the impact in your workplace.

We will be running another Coronavirus update webinar on 31 March 2020. See here to register.

IR35: Government confirms changes will go ahead

The Government has concluded its review of the implementation of changes to the off-payroll working rules from April 2020 and published its report. As expected, the Government has announced that the changes will go ahead as planned. The decision, which will come as a major disappointment to the many critics of the change, does not come as a surprise. The Government had made it clear that the last-minute review was aimed at implementation issues, rather than the broader policy decision to make larger employers responsible for operating the IR35 rules.

The report sets out a number of smaller measures and changes to address some concerns over the implementation of this major reform. The changes include that HMRC will take a light touch to penalties in the first year (customers will not have to pay penalties for errors relating to off-payroll in the first year, except in cases of deliberate non-compliance).

See our Insight for more detail.

NDAS: ACAS publishes new guidance

Acas (the Advisory, Conciliation and Arbitration Service) has published new guidance on NDAs, which is intended to help employers and workers understand when it is appropriate to use one. The guidance is largely consistent with the recent EHRC guidance and other guidance on NDAs. It is not a statutory code, but reflects “best practice” and an employment tribunal or court may consider it as evidence.

The guidance specifically states that it would be inappropriate to use NDAs to cover up discrimination, harassment, sexual harassment, and whistleblowing. However, it recognises that there may be circumstances when it is appropriate for employers to use confidentiality clauses, but says that they should be carefully drafted and used only where necessary. It states that NDAs should not be used as a matter of routine and that they “should not be used before alternative options have been explored”. There is also a list of what it refers to as “inappropriate and unlawful reasons” for using confidentiality clauses, including where the issue affects other workers and keeping the settlement confidential could have wider impacts due to lack of transparency or where routine use leads to a culture lacking openness.

Increase in Tribunal compensation limits

The Government has announced the new compensation limits for employment tribunal claims, which will come into force from 6 April 2020. The compensatory award for an unfair dismissal claim will increase from £86,444 to £88,519 (subject of course to the limit of 52 weeks actual pay) and the cap on a week’s pay (used for calculating the basic award in an unfair dismissal claim and statutory redundancy pay) will increase from £525 to £538.

New Parker Review Report on ethnic diversity on UK boards

The Parker Review Committee, which published its first report in 2017, has published an updated report indicating that there has been ‘slow progress’ on the ethnic diversity of FTSE boards. The latest analysis, which looks at the FTSE 250, has found that they are even less diverse than the FTSE 100 with 69% having no ethnic diversity on their boards (compared to 37%). The new report sets out new recommendations to help accelerate progress, which include improved reporting of ethnicity on boards and an increased focus on ethnic diversity at board level and in the pipeline.

UK Government announces new immigration system

The Government has published a policy statement, setting out its plans for a new points-based immigration system to apply to EU and non-EU citizens. The new system is due to take effect following the transition period, from 1 January 2021, and will bring an end to free movement.

For more key employment law updates from us:

• read our Insights on key cases over the last month;
• stay Ahead of the Curve with our summaries covering the key aspects of employment law under review by the government;
• scroll through our key dates timeline showing recent and anticipated changes to employment law; and
• attend our upcoming events or catch up on training.