242: And finally a look forward to what’s happening in employment news for June 2020

The Disclosure and Barring Service (DBS) has announced temporary changes to ID checking guidelines as a result of the coronavirus outbreak with effect from 19 March 2020. Current requirements for ID checkers to be in physical possession of original ID documents have been relaxed for urgent cases where it is not possible to follow the normal guidelines. For a temporary but unspecified period, ID documents can be viewed over video link and scanned images of ID documents can be used in advance of the DBS check being submitted. Applicants must then present the original versions of these documents when they first attend their employment or volunteering role.

The Government Equalities Office and the Equality and Human Rights Commission have suspended enforcement of the gender pay gap reporting deadlines for 2019-2020. Gender pay gap reports would otherwise have been due from public sector bodies by 30 March 2020 and from large private sector employers by 4 April 2020.

Employers have been advised by the Information Commissioner’s Office (ICO) that they should adopt a proportionate approach to data protection practices during the current crisis. Data protection concerns should not be a barrier to homeworking during the pandemic, but the usual security measures that would apply to homeworkers should be enforced. However, the ICO appreciates that employers will need to prioritise other areas or adapt their usual approach to compliance during this difficult period. The ICO has also reminded employers that data protection law does not prevent employees’ health information being shared with authorities for public health purposes and that staff should be informed about COVID-19 cases in the workplace, without naming individuals or providing more information than is necessary.

On 12 March 2020, the Low Pay Commission (LPC) published a consultation seeking views on the national minimum wage (NMW) and national living wage (NLW) rates which should apply from April 2021. The government has indicated that it would like the LPC to move towards a new NLW target of two-thirds of median earnings by 2024, and to reduce the NLW minimum age threshold from 25 to 23 in 2021, and to 21 by 2024. The consultation also seeks views on business conditions, the economic outlook, and the effects of recent increases in the NLW and NMW rates, particularly in the context of the pandemic and Brexit. Recommendations on new rates are normally made by the LPC in October 2020 and are usually followed by the government. The consultation will close on 4 June 2020.

New regulations made under the Parental Bereavement (Leave and Pay) Act 2018 have introduced pay and leave entitlements for bereaved parents in respect of children who have died since 6 April 2020. Any employee who loses a child under the age of 18 or who suffers a stillbirth after 24 weeks of pregnancy is now entitled to two weeks’ statutory leave to be taken in one block or as two separate weeks. Employees with at least 26 weeks’ service who meet the minimum earnings criteria will also qualify for statutory parental bereavement pay (at the same rate as statutory paternity pay).

The limits on certain Tribunal awards have increased for cases where the effective date of termination of employment occurs on or after 6 April 2020. The maximum compensatory award for unfair dismissal has increased from £86,444 to £88,519 and the maximum amount of a week’s pay, used to calculate statutory redundancy payments and basic and additional unfair dismissal awards, has increased from £525 to £538. Increases to the rates of statutory sick pay (from £94.25 to £95.85 per week), and to maternity pay, paternity pay, adoption pay and shared parental pay (from £148.68 to £151.20 per week) also took effect on 6 April 2020.

The Presidents of the Employment Tribunals in England, Wales and Scotland have issued a joint amendment to the guidance on the bands of awards, known as the Vento bands, for injury to feelings in discrimination and whistleblowing claims. For claims presented on or after 6 April 2020, the Vento bands will increase to the following: lower band: £900 to £9,000; middle band: £9,000 to £27,000; and upper band: £27,000 to £45,000.

As announced in the Spring 2020 Budget, new regulations have extended the existing income tax exemption for ‘welfare counselling’ provided by employers to cover counselling which constitutes a medical treatment (The Income Tax (Benefits in Kind) (Exemption for Welfare Counselling) (Amendment) Regulations 2020). This means that, with effect from 6 April 2020, employers can provide specialist counselling such as cognitive behavioural therapy and interpersonal therapies without incurring a tax charge which will be welcome news to employers in light of increased mental health concerns linked to COVID-19 and lockdown.

The government has published its response to the consultation on neonatal leave and pay which was part of the ‘Good Work Plan: Proposals for Families’. At present, parents often have to use some of their maternity or paternity leave, or annual leave for babies in neonatal care neonatal care. As a result of the consultation responses, the government now proposes to introduce a statutory right to leave and pay of up to 12 weeks for parents of babies in such circumstances. It is likely that neonatal leave will have to be taken after maternity or paternity leave, in a continuous block of one or more weeks. ‘Neonatal care’ is likely to be defined as care given to babies who are 28 days old or less if their admission to hospital lasts for a continuous period of seven days or more, although the government will consider whether to extend this to include palliative care and other neonatal outreach services. The right to leave will apply from day one of employment, but to employees only. Statutory neonatal pay will apply to employees who meet minimum earnings requirements. The government will consider whether these rights should also apply to caregivers other than parents or partners, such as grandparents. Employers will be able to reclaim statutory neonatal pay from HMRC by way of a reduction in their national insurance contributions in a similar way to statutory maternity pay. The government’s responses to the consultations on parental leave and pay, and on transparency of flexible working and family-related leave and pay policies have not yet been published.

The government has updated its holiday pay guidance to reflect the changes which came into effect on 6 April 2020 for calculating statutory holiday pay for workers without fixed hours or pay. In order to ensure that these workers are not disadvantaged by having to take their holiday at a quieter time of year when their weekly pay might be lower, the reference period used for their holiday pay calculation has been increased from 12 weeks to 52 weeks. Where a worker has not built up 52 weeks’ worth of pay data, employers should use the actual number of complete weeks’ data as the reference period. However, the guidance has not yet been updated to take account of the Court of Appeal’s decision in Harpur Trust v Brazel which held that holiday pay for permanent staff who only work part of the year, such as school term-time workers, should be calculated using their average earnings over a 12 week period, rather than being pro-rated using the 12.07% formula as recommended by Acas. On a similar theme, on 2 March 2020, the government launched a campaign to remind workers of their right to paid holiday and to prompt employers to ensure that workers take leave and check that holiday pay is calculated correctly.

Finally, the Home Office has published its response to the Law Commission’s report and recommendations on the simplification of the Immigration Rules. It has accepted or partially accepted most of the proposals and has established a ‘Simplification of the Rules Review Committee’ to look at consolidating and streamlining the Rules based on the principles identified by the Law Commission, with the emphasis on plain English drafting and a simpler, more user-friendly structure. The Home Office is also exploring how to improve immigration forms, guidance, and online information as well as ways to sustain consolidation and simplification when the Rules are amended in future. It is anticipated that these new Rules will be in force from January 2021.

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