Employment Law Coffee Break: Covid-19 update, flexible working back in the ET and our latest HR pensions spotlight

Covid-19 update

Following on from the publication of the government's autumn and winter plan 2021/22, employers should note the following:

Vaccinations: Subject to an on-going judicial review, full vaccinations will be required in CQC-registered care home settings from 11 November 2021 unless an individual initially self-certifies that they meet the criteria for medical exemption (although this self-certification is set ultimately to be replaced with certification via the NHS Covid Pass). The new requirements extend beyond employees of care homes to agency workers, contractors, volunteers, work experience students, job applicants and other individuals such as tradespeople working in those settings. Acas has published guidance to support employers navigating their way through this new requirement given the sensitivities and legal issues it raises. The government has also published a call for evidence seeking views on their proposal on the certification regime which could be introduced under Plan B of the autumn/winter 2021 plan for settings meeting specified thresholds, including whether staff working in those venues should be vaccinated or regularly tested.

CJRS and SSP Rebate scheme close: The Coronavirus Job Retention Scheme and the Statutory Sick Pay Rebate Scheme that were put in place to support employers during the pandemic close today. From 1 October, employers will be fully responsible for the employment costs of any individuals who continue to be furloughed and any Covid-19 related sickness absence will no longer be eligible for a rebate. Employers have until 14 October 2021 to submit their final claims for furlough days in September 2021 and until 31 December 2021 to make any claims for eligible SSP costs incurred up to and including 30 September 2021. Despite the schemes closing, payments made under them are still subject to scrutiny from a specialist taskforce set up by HMRC. HMRC has stated previously that it expects to recover about £1billion of fraudulently or mistakenly claimed furlough money over the next two years. It will remain critical to ensure records are maintained of key decisions taken, the data underlying submitted claims and supporting calculations – please contact partner, Ian Hyde, for advice on this. With the recent announcement of the Health and Social Care levy, which will initially see an increase in both employer and employee National Insurance Contributions (NICs) of 1.25% from April 2022 (before being formally separated out to become a separate tax on earned income from April 2023 at which point NICs will return to their current levels), employers may find themselves under increasing financial pressure on a number of fronts and must now wait and see what the Autumn Budget will hold on 27 October.

Gender pay gap reporting: Due to Covid-19, enforcement action against employers failing to report their gender pay gap for 2020/21 (due to be reported on or before 4 April 2021) was delayed earlier this year but will now start on 5 October 2021. With concerns that the gender pay disparity has widened during the Covid-19 pandemic, the Chartered Management Institute with the Equality and Human Rights Commission has created a practical toolkit to support organisations in tackling their gender pay gap. On a related note, following an online petition requesting the introduction of mandatory ethnicity pay gap reporting which was debated in the House of Commons on 21 September 2021, the government has confirmed that it will respond "in due course" to the earlier consultation published in 2018. Pending legislative reform, many organisations are looking at voluntary ethnicity pay gap reporting and we would be happy to talk to you about the legal and practical considerations this involves.

International travel: From 4am Monday 4 October 2021, the rules for international travel to England will change from the traffic light system to a single red list of countries (the green and amber list will no longer exist) and that there will be simplified travel measures for arrivals from the rest of the world with reduced testing and quarantine requirements for those who are fully vaccinated. From this date the government will also recognise full vaccinations from a further 17 countries and territories including Japan and Singapore. The full list can be found here. There are also reports that the UK may soon join the EU's Digital Covid Certificate scheme which covers more than 40 countries, including all 27 EU states. The scheme enables countries to digitally verify each other's vaccination certificates and test results, making travel quicker and easier.

With business travel reopening, employers must also remember to ensure that as well as Covid-19 requirements, their business travel policies reflect the impact of the EU-UK Trade and Cooperation Agreement on the movement of staff, whether as visitors or through more permanent assignments, now that free movement between the UK and EU has ended. Please contact your usual Osborne Clarke contact or Head of Immigration, Gavin Jones, for support on this new area.

Flexible working requests: ET illustrates risk of associative indirect discrimination

With businesses exploring hybrid working arrangements and flexible working requests set to rise, a recent Employment Tribunal (ET) decision again demonstrates the care needed for employers navigating this area. We previously looked at a recent decision where an indirect sex discrimination claim arising from a woman's flexible working request to accommodate her childcare was upheld. The ET has now upheld a similar claim for indirect disability discrimination by association in light of an employer's requirement for a senior manager, who was the primary carer for her disabled mother, to be office based. The ET determined that it had jurisdiction to hear the claim in light of European Court of Justice case law, despite the fact that, on the face of it, the Equality Act 2010 does not permit associative indirect discrimination requiring instead a claim to be brought by a person who themselves has the protected characteristic.

The claimant had historically been employed on a homeworking contract due to the need to care for her mother but, along with other homeworkers in her role, she was subsequently informed that she was at risk of redundancy as there was a need for "accessible and visible managers" to provide "oversight, supervision, advice and guidance".

Having "accepted as a general proposition and as a self-evident fact that carers for disabled people are less likely than non-carers to be able to satisfy a requirement to be office-based because of their care commitments", the ET found that the requirement to work in the office put the claimant at a substantial disadvantage because of her association with her mother's disability as her primary carer. No reasonable steps were considered to avoid the disadvantage; there was no discussion about alternatives, no evidence on which the decision was based and "the claimant's view that the role could continue as she had been doing it was ignored". Given the finding that a requirement to be "on-site" was discriminatory, the employer's "need to provide effective on-site and managerial supervision and support to more junior staff following a reduction in [Senior Lending Manager] headcount and the change in the nature of the… lending business" was not a legitimate justification. If the ET was wrong on this, it went on to find that in any event selecting the claimant for redundancy was not a proportionate means of achieving that aim. The ET also found that the provision constituted indirect sex discrimination as more women than men are primary carers for elderly relatives.

As a first instance decision this is not binding on other tribunals. However, with many businesses currently looking at their working arrangements, it demonstrates the care that must be taken to consider the implications for those who are protected or who are associated with a protected person and who may suffer a particular disadvantage. As well as clear, well considered policies, this decision underpins the importance of manager training to ensure that policies are applied sensitively in light of the particular circumstances and to avoid a "one size fits all" approach.

We will be looking at flexible working as part of our Eating Compliance for Breakfast webinar on 19 October 2021. We hope that you will be able to join us – please register here.

Our latest HR pensions spotlight: Talking to employees about workplace pensions

A recent survey by Wealth at Work of people over the age of 50 and approaching retirement has reported that 46% of employees do not receive any support from their employers to help them understand how to manage their retirement savings and that more than a quarter (and a third of women) say they need help in understanding their retirement income options.

Employers are often reluctant to speak to employees about pensions for fear of inadvertently giving advice and in many cases rely on their pension providers to provide education and assistance. Providers have an important role to play, but it is also in employers' interests to have an informed and engaged workforce. Not only do employees value more highly benefits they understand, but they are more likely to be better prepared for the retirement they want. This could benefit their employer's workforce and succession planning and mean it is less likely they will become disengaged at work.

The Pensions and Lifetime Savings Association has published "An Employer's Guide to Talking about Workplace Pensions". This provides practical guidance to give pension schemes and employers more confidence in giving support to employees. It aims to bust myths over what employers can and cannot do and sets out a practical table to give examples of support which is acceptable and support with risks attached.

Our pensions team would be happy to review any communications you propose to prepare, whether relating to pension changes or benefits more generally, to help ensure they do not give rise to potential liability or claims. Please speak to your usual OC contact or pensions partner Claire Rankin, who will be happy to help.