Key employment law developments: March 2021

Coronavirus update

After another brutal month in lockdown, the UK Government published its highly anticipated Roadmap regarding the lifting of restrictions in the UK. The key points for employers are below.

• Spring roadmap: on 22 February, the PM announced his 4-step Roadmap, subject to specific tests being met.

  • Step 1 - Schools are set to reopen fully on 8 March, which will be welcome news for employers and working parents alike. There will be limited changes on social mixing allowing six people or two households to meet outside from 29 March.
  • Step 2 - No earlier than 12 April, sectors of the economy will be permitted to reopen, including non-essential retail, hairdressers, indoor leisure facilities and outdoor hospitality.
  • Step 3 - No earlier than 17 May, further sectors will be permitted to reopen, including indoor hospitality, some indoor entertainment such as cinemas and museums and some large events including conferences and sports events (subject to capacity limits). Six people or two households will be permitted indoors.
  • Step 4 - No earlier than 21 June, the Government aims to remove all legal limits on social contact and other events, and reopen remaining closed settings (such as nightclubs).

• Homeworking: There will be ongoing Government guidance to work from home where possible in the months ahead and until at least May 2021.

• International travel: On 12 April, the Global Travel Taskforce will report their recommendations regarding international travel, which will resume no earlier than 17 May (step 3). The Roadmap also states that "once more is known about the evidence of vaccines and their efficacy against new variants, the Government can look to introduce a system to allow vaccinated individuals to travel more freely internationally".

• Clinically vulnerable adults: The Roadmap states that it does not anticipate that it will be necessary to advise shielding beyond the end of March 2021 and will confirm advice and next steps nearer the time. It is considering long-term support for those who are Clinically Extremely Vulnerable.

• Workplace testing: In the long term, the Government plans to use regular asymptomatic testing in sectors with the highest risk of transmission, as well as in the workplace. The Roadmap references a mini case study (Apetito) which had an extremely high participation rate and, having conducted over 5000 tests, they identified 66 asymptomatic cases they would not otherwise have found.

• Covid-status certification: The Government is considering whether this could play a role in reopening the economy but will also consider the ethical, equalities, privacy, legal and operational aspects of this approach. It will set out its conclusions in advance of Step 4.

• Furlough: As part of the Spring budget, the Treasury has also announced that it will extend the job retention scheme (CJRS) until September 2021. Under the new extension, the government will continue to pay 80% of furloughed employees' salary for hours not worked, with a new taper requiring employers to contribute 10% to wages in July and 20% in August. Read more about the 2021 Budget.

• Data protection guidance: the Information Commissioner’s Office (ICO) has updated its advice for organisations on data protection and coronavirus. In particular, it has updated its sections on:

  • Testing – to include reference to the duty of care to employees and the need to consider the latest government advice regarding the most effective and reliable tests. It specifically refers to the public health condition in the Data Protection Act 2018 for employers which are helping to stop the spread of the virus by running their own testing regime and sharing the results with the public health contact tracing authorities.
  • Vaccinations – to include new guidance on collecting data about vaccination status. It says that the reason for recording vaccination status must be “clear and compelling” and says that a Data Protection Impact Assessment (DPIA) is required if the use of the data is likely to result in a high risk to individuals.

Gender pay gap reporting deadline suspended

Due to the continuing impact of the pandemic, the Equalities and Human Rights Commission (EHRC) have announced a six month suspension to the enforcement of the gender pay gap regulations for the reporting year 20/21. This means that employers now have until 5 October 2021 to report their gender pay gap information. No enforcement action will be taken if they report by then.

EU Commission publishes draft UK Adequacy decisions

On 19 February 2021, the EU Commission published two draft adequacy decisions in respect of the UK. Under the UK-EU Trade and Co-operation Agreement, it was agreed that there would be a four-month window (which could be extended to six) during which the UK would still not be treated as a third country for GDPR purposes to allow the free flow of data. As expected, the EU Commission has concluded that the UK ensures a similar level of protection to the EU for personal data, which it has set out in:

• a draft adequacy decision under the EU GDPR (for personal data processed other than by the law enforcement sector); and
• a draft adequacy decision under the EU Law Enforcement Directive (for personal data processed by the law enforcement sector).

If these draft decisions are formally confirmed, personal data will be permitted to flow freely between the EU and the UK without the need for additional mechanisms in place. Both draft decisions will lapse after four years, when they will be reviewed to ensure that the UK continues to provide adequate protection. For now, the decisions are welcome news for employers.

New report on gendered economic impact of coronavirus

The Women and Equalities Committee has published a report on the gendered economic impact of coronavirus, concluding that existing inequalities have been ignored and exacerbated by the pandemic response. The report calls for the Government to assess the equality impact of its policies, including its support schemes and recovery strategy. It sets out a package of recommendations including:

• amending the Flexible Working Regulations to remove the 26-weeks' service threshold
• publishing the draft Employment Bill by the end of June 2021
• conducting a study to examine the adequacy of, and eligibility for, Statutory Sick Pay
• legislating to extend redundancy protection to pregnant women and new mothers
• urgently reinstating gender pay gap reporting with reporting required in April 2021 (which is highly unlikely given the recent decision to suspend (above))
• publishing proposals within the next six months for introducing ethnicity and disability pay gap reporting
• amending the HR1 form to require information about the sex, race, and if possible other protected characteristics of staff.

HMRC publishes briefing on its approach to IR35 compliance

HMRC has published an issue briefing outlining how it will support organisations to comply with the changes to the off-payroll working rules (IR35) from 6 April 2021 and its approach to compliance. The changes to the rules mean that the responsibility for determining whether the rules apply will shift from the contractor's personal service company (PSC) to the organisation engaging them. If the rules apply, the client organisation (or agency or third party paying the contractor's PSC) is responsible for accounting for employment taxes and NICs.

The policy paper sets out the background to the rules and the reforms, and provides details of the help and support HMRC will provide. With regard to compliance, HMRC has committed to take a 'light-touch' approach to penalties and organisations will not have to pay penalties for inaccuracies in the first 12 months, unless there is evidence of deliberate non-compliance.

Public Sector Exit Payment Cap Revoked

The Government has announced that it will revoke the Public Sector Exit Payments Regulations 2020, which brought into force a cap of £95,000 on public sector exit payments. The Regulations only came into force some three months ago in November 2020, but the Government has since recognised that there have been unintended consequences. It has issued a Treasury Direction to suspend the Regulations with immediate effect whilst a formal revocation takes place.

Other recent events which may be of interest:

• Webinars: SMCR Series
• Webinars:Brexit - upcoming and on demand webinars
• Global Insight Webinars: Protecting business interests and trade secrets

For more key employment law updates from us:

• read our key cases over the last month
• review all our Employment Insights over the last twelve months
• subscribe to our future editions of SMCR View
• scroll through our key dates timeline showing recent and anticipated changes to employment law, and
• attend our upcoming events or catch up on training.