The pandemic has presented a constant challenge for employers in keeping up with frequent changes to rules and guidance. As the restrictions now start to ease, we set out below a summary of recent developments:
- Although the “stay at home” instruction has been lifted from 29 March 2021, individuals are still asked to minimise travel and the “work at home wherever possible” instruction remains in place (until Step 4 of the roadmap for easing restrictions, currently projected to be 21 June 2021, at the earliest). Where staff cannot work from home, employers of any size can now register their interest in providing twice-weekly workplace lateral flow tests, while those with at least 10 employees who cannot provide workplace testing can instead register to order tests for employees to collect and use at home. Tests will be available free until the end of June. Employers should register their interest by 12 April 2021 (even if they will not start testing immediately) – see further details here and register here. The government has also published general guidance on workplace testing and specific guidance on the reasonable steps to facilitate tests that an employer should take if it requires staff to travel regularly across UK borders, here. Anyone travelling abroad from England, including for essential work purposes, must now complete a declaration form for international travel (except for travel to Ireland).
- Acas has updated its guidance to provide further information about workplace testing and vaccinations, recommending employers encourage and incentivise (for example, by offering fully paid leave for vaccination appointments and absence due to side-effects, and for self-isolation after a positive test) rather than require employees to have tests/vaccines, and that policies should be put in place after consultation with the workforce. The government’s ‘working safely’ guidance makes clear that testing/vaccination does not remove the need for measures to make workplaces COVID-19 secure.
- The government intends to review the use of measures such as social distancing, masks, and the potential for COVID-status certification ahead of Step 4 of the roadmap.
- From 1 April 2021 individuals categorised as extremely clinically vulnerable are no longer advised to shield (and so will no longer be eligible for Statutory Sick Pay while shielding, although furlough is still available); the advice remains that these individuals should work from home if possible. The guidance for women who are 28 weeks pregnant and beyond or with underlying health conditions remains that additional precautions are appropriate and that this may require working flexibly from home in a different capacity or paid suspension.
- Earlier this month the Chancellor confirmed that the Coronavirus Job Retention Scheme is to be extended until the end of September 2021 (although the Treasury Direction has not yet been made). From July, the government will introduce an employer contribution towards the cost of unworked hours, set at 10% in July and 20% in August and September.
- The Treasury Direction extending the CJRS until 30 April 2021 clarified that for employees on variable pay, furlough pay in March/April 2021 (which is based on the higher of the average income for 2019-2020 and a corresponding month lookback rate) should refer back to the corresponding month in March/April 2019, and not March/April 2020 (as that would involve looking at a period when employees might already have been on furlough pay). The calculation for ‘usual hours’ of work is similarly amended.
- Regulations have been made extending once again the temporary provisions on calculating a week’s pay for statutory notice and redundancy pay purposes (to avoid disadvantaging an employee who has been furloughed on reduced pay during the calculation reference period) to apply until 30 April 2021 (rather than ending on 31 March 2020). Presumably a further extension will be made in due course to cover the remainder of the CJRS. A recent tribunal decision has clarified that the original regulations in force from 31 July 2020 do not apply to the calculation for any part of a notice period prior to that date.
- The income tax and NIC exemptions for employer-provided and employer-reimbursed Covid-19 antigen tests and for reimbursement for home office equipment are also being extended through to the 2021-22 tax year. The SSP Rebate Scheme allowing eligible employers with fewer than 250 employees to apply for reimbursement of two weeks’ SSP per eligible employee for sickness absence due to COVID-19 will also continue for the time being.
- The Equality and Human Rights Commission has suspended enforcement of the gender pay gap reporting deadlines for the 2020-21 reporting year to 5 October 2021, although employers are encouraged to report earlier if possible.
- Legislation has been drafted to extend the right not to be subjected to detriment for taking certain steps when faced with serious and imminent danger at work, currently only available to employees, to protect ‘workers’ too, with effect from 31 May 2021. This follows the successful judicial review claim brought by the IWGB union summarised in our blog post here. The draft explanatory memorandum notes that changes will also be made to PPE regulations later in the year to extend these to cover workers as well as employees.
- A BEIS report has highlighted the increased incidence of domestic abuse during the pandemic lockdowns and recommended employers provide awareness training and comprehensive policies. Acas guidance on working from home now addresses steps employers can take to help, and there is also a #YouAreNotAlone employer pack. The government is to establish a working group to drive broader culture change. The guide produced by the CIPD and EHRC last year is available here.
Please do get in touch with your usual Herbert Smith Freehills contact if you would like to discuss any of these developments further.