Employment Law Coffee Break | Covid-19 update; flexible working requests; shared parental pay in the tribunal and our April pensions spotlight for HR

Covid-19 update: social-distancing, hybrid working and right to work checks

Social distancing review

With the vaccination roll-out now reaching those aged 42 and over, the Department for Business, Enterprise and Industrial Strategy (BEIS) is consulting with businesses on how social distancing requirements can be relaxed so as to permit more employees to return to the workplace. The review on social distancing measures is due to be concluded before 21 June which is the date when it is hoped that restrictions will be lifted in line with the government's roadmap. We are advising employers as they prepare for this next stage, including the challenges many are tackling around bringing staff back from furlough, mental health and wellbeing concerns, ensuring the workplace remains Covid-secure and introducing vaccination policies and workplace testing, as well as a move towards a more hybrid way of working (see below).

The importance of complying with the applicable health and safety guidelines has been underlined in a recent Employment Tribunal decision; the employee's claim that he had been unfairly dismissed for exercising his right to leave the workplace and take steps to protect himself as he reasonably believed he was in serious and imminent danger failed where the ET found that the employer had complied with the government guidance on making the workplace Covid-19 secure. This case turned on its specific facts and a careful assessment will be needed in each case.

Hybrid working: our new interactive risk tool

The rapid transition to hybrid or remote working models exposes businesses to new risks that threaten the bottom line. In our new interactive risk tool we identify some of the key risks we’re advising on right now and how we can help your business mitigate them.

Please look out for our series of podcasts which we will be publishing over the coming weeks exploring the legal and practical steps employers must take when looking to adopt new working models. We also have a number of checklists and training products to help support you in this journey. Please do speak to your usual Osborne Clarke contact for more details.

Changes to right to work checks

The Home Office has announced that the temporary adjusted right to work check measures introduced in light of the Covid-19 pandemic will end on 16 May 2021. From 17 May 2021 employers must check an applicant's original documents or, where the applicant agrees, their right to work online. Retrospective checks will not be required for those individuals whose right to work has been checked under the adjusted measures (between 30 March 2020 and 16 May 2021), although where a worker's right to work is time-limited, any additional checks required after 17 May 2021 will need to be carried out in line with the usual rules. While the adjusted checks can be used up to 16 May 2021 (even where employment begins on or after 17 May), the Home Office has advised that employers in this position should carry out standard checks where possible in order to "ensure the security and integrity" of their right to work checks.

Dealing with flexible working requests

As businesses explore their future plans for hybrid/remote working, it is important not to forget the existing statutory rights around flexible working which more employees may now seek to take advantage of as workplaces reopen more fully. Our latest podcast looks at the existing legal framework and the particular issues this is now raising for many businesses in the current climate.

Listen to the podcast and subscribe.

This is an area where we are anticipating legal reform with a consultation on making flexible working the default promised - see our earlier Coffee Break here. The minister for Women and Equalities, Liz Truss, has also called for employers to "normalise" flexible working to help reduce regional inequality as the UK recovers from the pandemic. Any consultation will no doubt attract significant interest and may well trigger further employment law reform.

The House of Lords Select Committee on Covid-19 has published a report, Beyond Digital: Planning for a Hybrid World in response to the government's commitment to developing a "new digital strategy" recognising that an increasing reliance on digital technology risks exacerbating existing inequalities, as well as continuing concerns over employee wellbeing. It notes that "employment practice, policy and legislation have failed to catch up with the hybrid reality of today's workplace" and that "alongside its new hybrid strategy, the Government should consult on strengthening the current legislative framework for employment rights, to ensure it is suitable for the digital age (including consideration of a right to switch-off, responsibilities for meeting the costs of remote working, rights for platform workers, the use of workplace monitoring and surveillance, and giving workers a right to access data about their performance)".

BEIS has stated that "the employment bill, when introduced, will deliver the largest upgrade to worker's rights in a generation, including measures that will help people to balance work with their personal lives". We wait to see if this goes so far as the right to switch-off – a right which a number of jurisdictions have introduced, most recently in Ireland as it has sought to help employees "strike a better work life balance".

Shared parental pay: latest decision from the Employment Appeal Tribunal

The EAT has found that there was no direct sex discrimination where an employer's family leave policies enhanced maternity and adoption pay but not shared parental leave pay. It agreed with the ET that a male employee on shared parental leave was unable to compare himself with a female employee on adoption leave as there were "material and significant differences". The purpose of adoption is "very different and potentially more difficult" than shared parental leave; it involves amongst other things the formation of a parental bond, rather than simply facilitating childcare. The ET applied an earlier Court of Appeal decision which had already determined that likewise, there are material difference between a woman taking maternity leave and a man taking shared parental leave. The correct comparator in this case was a female employee taking shared parental leave and as the shared parental leave policy provided for both male and female employees to receive statutory shared parental pay, there was no direct discrimination.

With shared parental leave generally underused, the government is under pressure to reform what has been termed a "deeply flawed" scheme, with the TUC, Maternity Action and Fawcett Society calling for it to be replaced with a new model of parental leave which would give both parents non-transferable paid leave to care for their child. The government was due to publish an evaluation of the shared parental leave scheme in 2019 but that is now scheduled for late 2021. 

Pensions spotlight for April: what can you tell employees about pensions?

The Financial Conduct Authority (FCA) and the Pensions Regulator have published an updated version of their guide for employers and pension scheme trustees on how they can support staff and scheme members with financial matters without straying into FCA-regulated areas. This includes guidance for employers on:

• the information they can provide to staff about pension scheme(s) and other workplace financial benefits;
• the information they can provide to staff to help them understand their options for accessing pension savings;
• signposting publicly available information, planning tools and guidance services;
• signposting and/or arranging access to independent financial advice (to be read with this recent Pensions Ombudsman factsheet); and
• helping staff to avoid scams.

The key takeaway is to offer help in ways which do not involve "making financial promotions", arranging transactions or giving advice. For pensions this means that, for regulated products such as group personal pension schemes, employers can give factual and generic information about fund choices, ability to switch investments and transfer and retirement options, but cannot promote entry to the plan or recommend particular investments, products or providers. Employers can also signpost publicly available information and guidance (for example, from the Money and Pensions Service (MaPS)) and financial advice (for example, by referring to an industry wide directory of FCA-regulated independent financial advisers (IFAs)).

Exemptions apply in some areas. For example, enrolling staff and supplying information in compliance with automatic enrolment duties, and giving information on the merits of participating in the employer's (trustee managed) occupational pension scheme are both permitted.

Employers and trustees can go one step further and run an exercise to identify suitable IFAs for staff/scheme members to engage on their own account, provided the advisers are not restricted in the providers and products they can recommend. The Pensions Ombudsman's factsheet highlights risk/liability points to consider. The guide also reminds readers of the tax treatment of advice paid for by an employer and of the possibility that staff with money purchase benefits might be able to take up to £500 from their pensions pot to pay for pensions advice.

Employers are encouraged to read the updated guidance note, consider how it affects them, and take legal advice if they are not sure whether a particular approach or communication is compliant.

For further information, please do speak to Claire Rankin or Jennifer Alldridge.