Employment Law Coffee Break | Covid-19 update, a focus on the future of work and our budget predictions
Published on 22nd Oct 2021
Welcome to our latest Employment Law Coffee Break in which we look at the latest legal developments impacting UK employers
With Covid-19 cases rising, the government has continued its call for those who have not yet been vaccinated to do so and for those eligible for booster jabs to take them up. The government has not yet actioned "Plan B" of its Covid-19 autumn/winter plan 2021/22 which would provide for an increase in mitigations to avoid a return to the lock-downs we have seen over the past year. As part of Plan B the government has stated that it "would also consider asking people once again to work from home if they can, for a limited period" following advice that it is the high levels of homeworking which have played an important role in preventing sustained epidemic growth previously. A decision to return to home-working where people can will "be based on the data at the time" given the disruption and greater immediate costs to the economy and some businesses.
While there is no immediate disruption to the plans many employers have put in place for employees to work from the office for at least some of their working week, it is inevitable that employees in areas with high infection rates may raise concerns about travelling to and from and attending work. Businesses should continue to ensure that their Covid-19 risk assessment is up to date and reassure employees of the measures being taken in the workplace to protect health and safety, as well as reminding employees of their obligations around self-isolation. Individual issues raised should continue to be addressed sensitively on a case-by-case basis to minimise the risk of legal claims including breach of the implied term of trust and confidence, the right for an individual not to be subjected to a detriment or be dismissed for not attending work where they reasonably believe there is a serious and imminent danger, and discrimination.
Employers who have used the Coronavirus Job Retention Scheme (now closed) should also note that guidance has been updated for employers who have over-claimed and need to pay back all or some of their grant or those who wish to make a voluntary repayment. The guidance warns that where an under-claim is identified, steps should be taken to correct any underpayment made to the employee as a failure to pay the minimum 80% reference pay could lead to the claim for that employee being invalidated. In the meantime, HMRC is continuing to send out "nudge" letters where there are concerns that a claim may potentially need to be reviewed. Please do speak to Ian Hyde or your usual Osborne Clarke for further advice in this area.
A focus on the future of work
Driving change in employment in 2022 and beyond
This year our virtual international employment conference will take place on 3 November 2021. This will provide an opportunity for you to hear from both our external speakers and Osborne Clarke UK and European Employment Partners on a host of employment related issues, opportunities and challenges facing businesses and organisations across a variety of sectors now and in the coming 12 months. These include: what it means to be a good employer in 2022; what can employers expect of their employees in 2022; and what is driving the employment agenda. Our guest panellists include Catrin Llewellyn, Senior Corporate Counsel (Employment) at Veritas; Lindsay Ross, Chief Human Resources Officer at Bitpanda; Vanessa Hogan, Compliance and Corporate Director (Employment) at Splunk Inc; and Craig Spickett, Interim Chief People Officer (Employment) at Godiva Chocolatier. Please register for the conference here.
Decarbonising cities: What does the latest technology means for employers?
This week sees the publication of the results from an international thought leadership programme which Osborne Clarke commissioned Economist Impact (part of The Economist Group) to produce on the future of technology-driven decarbonisation in cities. The research aimed to identify 12 technologies that hold the potential to help cities achieve their carbon-emissions targets while also creating jobs, lowering energy costs for residents and improving overall quality of life. Covid-19 has seen an acceleration in employers adopting technologies which aid mobile connectivity to enable working from home and these "unified communications" are identified as playing a key role in reducing carbon emissions. As businesses continue to navigate their way out of the pandemic, use is likely to continue or increase as hybrid working models are established and employers focus on both a positive impact on emissions and enhancing quality of life for their workforce. Please do read our research and share with others in your organisation.
With COP26 only a few weeks away and the publication of the government's "Net Zero Strategy: Build Back Greener", pressure is increasing on businesses to reach net zero targets and improve air quality - “green HR" is rising up the agenda as a critical component in supporting this. We will be exploring green HR at our next UK employment law webinar on 16 November – please save the date and look out for our invitation to register.
The potential impact of artificial intelligence: The government publishes a new report
The Department of Business, Energy and Industrial Strategy has published a report prepared by PwC on the potential impact of artificial intelligence (AI) and related technologies on UK employment and the demand for skills across different sectors. The report concludes that while AI and related technologies should not cause mass technological unemployment, they may lead to significant changes in the structure of employment across occupations, sectors and regions of the UK. While the effects may be relatively small over the next five years, they could become more material over the next ten to 20 years, with seven million people in the UK potentially under-skilled for their jobs by 2030. The report notes that while some sectors will see a net gain in jobs (including technology, communications, professional and life science roles), in contrast, other occupations will experience job displacement with sale and customer services roles impacted over the next five years and administrative jobs in the next five to ten years.
Inevitably, employers in sectors with the greatest job displacement will need to ensure that proper consideration is given to re-skilling their existing workforce to ensure that any redundancies that do become necessary are conducted fairly; the government has already announced a number of initiatives to support training and re-skilling which businesses should look to advantage of, as well as its continuing support for apprenticeships. This is an area where we may see more announcements in next week's budget (27 October 2021).
Businesses may also explore other workforce models in anticipation of future restructurings, such as engaging more casual and temporary staff (for example by replacing leaving employees with zero-hours workers or temps) so that it is less costly when the eventual termination moment comes. Moving to such structures raise specific employment law and tax considerations and employers must take advice on the risks involved; please speak to Kevin Barrow who heads up our specialist contingent workforce team for support. Worker rights is an area under continuing scrutiny from the courts and the media and, against the backdrop of the new labour supply enforcement body already on the cards, is an area where we may see further legislative reforms pushed through. In contrast, employers who will see a growth in jobs will need to focus on their recruitment and retention strategies in the so called "war for talent"; many employers are finding that new talent is focused increasingly on drivers such as flexibility and culture, and that a competitive remuneration package may not be sufficient on its own. We are also seeing many employers beginning to look at new types of training model, especially for developing people with technology skills.
With diversity and inclusion and social mobility high on agendas, businesses should also note the potential for AI to exacerbate inequalities in the workplace; the report notes that those with higher education and skills levels, who consequently tend to have higher earnings levels, are more protected from the potential disruption to their roles. Employers must keep careful watch on the potential impact of AI and related technologies and adopt appropriate strategies to minimise any potential negative impact.
Employee tax and incentives spotlight for October: What can we expect in next week's budget?
The next budget is due to be delivered next Wednesday 27 October 2021, being the second one this year (following the spring Budget on 3 March). The government has already announced some forthcoming tax rises including the recently announced increase in the national insurance contributions (NICs) rate and the introduction of the new Health and Social Care Levy. You can read more about what we expect to see here.