333: What’s coming up in employment law?

ICO consultation on data practices

The Information Commissioner’s Office (ICO) is calling for views on data protection and employment practices to help update its existing guidance. The employment practices code, supplementary guidance and quick guide will be replaced with a more user-friendly online resource addressing recent changes in data protection law as well as new developments in the way employers use technology and interact with staff. For example, the ICO is asking for input on the use of monitoring technologies; the impact of artificial intelligence and machine learning on decision-making; the trend towards remote working; and collecting data on employees’ health. The closing date for responses is 21 October 2021.

And a further ICO consultation on data transferred outside the UK…

The ICO is also consulting on how personal data can be protected when it is transferred outside the UK, with a view to providing organisations with greater certainty in relation to regulatory and legal compliance. The consultation includes proposals for an international data transfer agreement and guidance to replace Standard Contractual Clauses, and proposals for transfer risk assessments. Views are also sought on any relevant privacy rights, and legal, economic and policy considerations and implications. The consultation closes on 7 October 2021.

ACAS recommendations on Covid vaccinations

A survey of over 2000 British businesses carried out by YouGov and published by Acas has revealed that 59% of employers are allowing paid time off for COVID-19 vaccinations. However, 25% of businesses said they had not been giving staff paid time off to get vaccinated and have no plans to do so. The survey also highlighted that 50% of employers provide full company sick pay for absences due to vaccination side effects. Acas recommends encouraging staff vaccinations by granting paid time off for appointments and sick pay, particularly given that fully vaccinated workers are less likely to need lengthy time off with Covid.

Extension of temporary right to work checks

The temporary right to work check measures introduced in March 2020 as a result of the pandemic will now end on 5 April 2022, not 31 August 2021 as previously announced by the Home Office. These temporary changes allow employers to carry out right to work checks over video calls. Job applicants and existing workers can also send scans or photos of their ID documents via email or a mobile app, rather than sending the originals. No further retrospective checks on employees are required. From 6 April 2022, employers must once again either check original documents or check the applicant’s right to work online using a share code. However, the Home Office has reiterated its intention to introduce a new digital service to enable checks to continue to be conducted remotely but with enhanced security.

List of employers breaching National Minimum Wage

The Department for Business, Energy and Industrial Strategy (BEIS) recently published a list of 191 employers who breached national minimum wage legislation between 2011 and 2018. BEIS confirmed that the employers on the list have since repaid what they owed and were also fined £3.2 million. The reasons for the underpayments varied and were not always intentional. They included incorrect deductions (such as for uniforms and expenses), failing to pay workers for time worked (including overtime), and paying the incorrect apprenticeship rate.

Creation of ‘flexible apprenticeships’

The Government has confirmed that it will proceed with the creation of flexible apprenticeships. This new scheme will target sectors with flexible employment patterns and short-term roles which are unsuitable for traditional 12 month apprenticeships, such as TV and digital media, social care, transport, agriculture and manufacturing. Using a competed grants process, a new £7 million fund will establish a small number of registered agencies which will set up flexi-job apprenticeships across a range of projects and with different employers. The first apprenticeships organised through these flexi-job apprenticeship agencies are expected to start in early 2022.

Announcement of a National Disability Strategy

Following up on its 2019 election manifesto commitment, the Government has published a National Disability Strategy setting out wide-ranging measures to remove barriers faced by disabled people in all aspects of their lives. This includes a number of proposals to make work more accessible and inclusive: a new online advice hub for employers, run by BEIS in conjunction with Acas; piloting an Access to Work Adjustment Passport to help disabled people move more freely between jobs and remove the need for repeated disability assessments; consulting on workforce disability reporting; clarifying the planned new right to one week of unpaid carers’ leave; and providing further support to disabled apprentices. The impact of the strategy will be tracked, with the results published in summer 2022.

Improving access to Occupational Health expertise

The DWP and the Department of Health and Social Care have published a joint response to the 2019 consultation ‘Health is everyone’s business: proposals for reducing ill health-related job loss.’ This confirms that major reforms proposed to the Statutory Sick Pay (SSP) system will not be taken forward, at least for the time being, including allowing for SSP to be paid on a pro rata basis during a phased return to work after sickness absence; removing the concept of qualifying days; and abolishing the lower earnings limit. A further proposal for all employees to have the right to request workplace modifications on health grounds has also been rejected. Against the background of the COVID-19 pandemic, the Government will be proceeding with a new strategy of improving employer access to occupational health (OH) provision. This will include testing a potential new subsidy to tackle financial barriers to purchasing OH services; improving availability for SMEs and the self-employed; supporting research; and ensuring sufficient OH expertise is available to meet the anticipated increase in demand post COVID-19. The Government will also implement measures to enable more effective use of fit notes, including creating a new interactive fit note, and embedding electronic fit notes in hospital systems.