Against a background of widespread discussion around the ethics of making the Covid-19 vaccination compulsory, the Department of Health and Social Care (DHSC) is consulting on compulsory vaccinations (except for those who are medically exempt) for those working in care homes and for those visiting care homes in a professional capacity. The consultation opened on 14 April and closes on 21 May.
Coronavirus Job Retention Scheme – updated guidance
HMRC has refreshed its guidance on how to calculate furlough payments for non-fixed rate employees; how to identity an employee's relevant reference day; and how to calculate amounts when the government contribution reduces from July onwards. The guidance also reminds employers to pass all relevant information relating to possible future claims under the CJRS to the new employer in the event of a TUPE transfer.
Covid lateral flow test kits
Encouraging employees who are attending the workplace to take a Covid lateral flow test is recommended but it should be noted that such a course of action must done on a voluntary basis. Anecdotal evidence indicates that the majority of people are willing to take the test once they have understood that it is an important part of making the workplace Covid-secure. This also applies to those who have been vaccinated: the vaccine does not confer 100% immunity so it is still possible to contract and transmit the disease to others. Wright Hassall has set up on-site testing in line with government guidance and we would be happy to share our experience of doing so with you.
Vento Bands increase
Vento bands, the guidelines that inform financial compensation for ‘injury to feelings’, often applied in discrimination claims, increased on 6 April as follows:
- Lower band: £900 to £9,100 (less serious cases).
- Middle band: £9,100 to £27,400
- Upper band: £27,400 to £45,600 (exceptionally serious cases can go above £45,600).
Changes to IR35 rules are now in force
New off-payroll working rules (often known as IR35) are now in force for the private sector. If. All medium and large private sector businesses are legally required to determine if an individual is an ‘employee’ for tax purposes and will be responsible for income tax and NICs.
Workers can report Health and Safety concerns without fear of detriment
From 31 May 2021, workers will be eligible to be protected from detriment if they take a specific course of action as a result of a health and safety concern. Currently, this protection is only extended to employees. Concerns over contracting Covid-19 in the workplace has already resulted in a number of claims being brought to tribunal by employees concerned that their workplaces are not sufficiently Covid-secure. All employers are encouraged to follow government guidance on implementing Covid-secure measures in the workplace.
Asda: Equal pay for equal work
A recent Supreme Court ruling means that those working on the shop floor in Asda supermarkets can use those employees working in the store’s distribution centres as comparators. Asda’s retail employees have been engaged in a long running dispute over equal pay and this ruling is a positive step in their campaign. However, they still have to prove that their work is of equal value to that of their distribution colleagues. Other supermarkets are watching this very closely
Case update: Mencap v Tomlinson-Blake
In 2018, a care worker, Claire Tomlinson-Blake brought a employment tribunal claim against the Royal Mencap Society on the basis that she should be paid the National Minimum Wage for her ‘sleeping over’ shift which she was required to do in her role as a care worker for a severely disabled man. There is a clear distinction between a ‘sleeping carer’ and a ‘waking carer’ with the former being paid a flat rate and the latter receiving the hourly minimum wage. Understandably, for those organisations providing round the clock care for those who need it, paying a flat, rather than hourly, rate is financially advantageous. Mrs Tomlinson-Blake argued that she should be paid the NMW because she was on call and expected to provide care during the night if required during her sleepover shift. The NMW Regulations 2015 specify that the NMW is only payable when workers are awake for the purpose of working; just being available for work, even if that means sleeping on the premises, does not count as actually working.
The original tribunal decided in favour of Mrs Tomlinson-Blake so Mencap appealed. The Court of Appeal overturned the Tribunal’s decision so she (backed by Unison, her union) appealed to the Supreme Court which upheld the Court of Appeal’s ruling. The upshot is that care workers undertaking sleepover shifts only need to be paid a flat rate except for those hours where they are actually working. This will be a major relief to those charities and organisations that provide care services: had the ruling gone in Mrs Tomlinson-Blake’s favour, it is likely that they would have been facing claims for back payments, running into millions of pounds. Since the original tribunal claim, some providers started paying the NMW for sleepover shifts in anticipation that Mrs Tomlinson-Blake would win her case. Those organisations will now have to consider their next steps carefully: a unilateral change in wages without consultation is likely to give rise to claims.
As always, if you need any employment law advice, please contact our UK employment lawyers.