Employment Law Coffee Break | New government guidance on right to work checks and business travel, the Queen's speech, EAT decision on health and safety protection and future-proofing working arrangements

Covid-19 Update

Right to work checks and business travel

The government has confirmed that Covid-19 adjusted right to work checks will now stay in place until 20 June 2021 and not end on 16 May 2021 as previously announced.

Government guidance has also been issued for UK business travellers to the EU covering Belgium, France, Germany, Italy, Netherlands, Spain, Sweden and Switzerland. Guidance for other countries is expected to be published later this month. We are supporting employers in putting in place business travel policies, setting out permitted activities in each applicable jurisdiction under the business travel rules, how business travel overseas should be recorded and identifying where further advice from HR/permission from more senior management should be sought.

In the meantime, it remains important to understand and factor in the applicable Covid-19 restrictions in both the UK and the potential destination (for example, will quarantine rules apply on the return into the UK?). These may mean that travel is not physically possible or is financially unfeasible. Employers should also ensure that clear guidelines are given to managers on dealing with any requests by staff not to travel, perhaps due to medical concerns or family circumstances.

If you would like to discuss putting in place a business travel policy or to understand more on the new business travel rules and immigration options which are now in place, please contact Gavin Jones, who heads up our immigration team, or your usual Osborne Clarke contact.

Flexible working guidance

The government's flexible working taskforce is reported to be drawing up guidance to support the emergence of new hybrid ways of working once the remaining lockdown restrictions lift; the current aim for this is 21 June 2021. Please see below on how we are supporting clients on this.

The Queen's speech: what did it say for employers?

No mention was made of the Employment Bill (first announced in December 2019) in the Queen's speech on 11 May 2021; and with a large number of other bills announced any immediate employment law reform is perhaps unlikely – it has been reported that the government may be waiting for the right time to implement reforms to ensure the needs of businesses and workers are addressed in the post-Covid economy. However, there are a number of proposals which have recently been the subject of government consultation (non-compete provisions), or are promised (flexible working), so future developments are not off the cards.

The Queen's speech did reaffirm the government's commitment to skills and training with the prime minister, Boris Johnson, stating that "the challenges of the last year highlight the need to rethink and rebuild bringing our skills and education system closer to the employment market and widening the opportunities that are available for all as we build back better from the pandemic".

A Skills and Post-16 Education Bill is due to be introduced into the House of Commons next week that will give every adult access to a flexible loan for higher level education and training at university or college, as well as giving employers a statutory role in planning publicly funded training programmes with education providers through a "Skills Accelerator" programme.

The government also intends to bring forward a Health and Disability green paper on continuously improving the support offered to disabled people while laying the foundation for sustainable reform. The National Strategy for Disabled People will set out practical changes for disabled people that remove barriers and increase opportunity.

Implementing health and safety measures: EAT confirms the protection afforded to employees

Covid-19 has put a spotlight on provisions in the Employment Rights Act which make it automatically unfair to dismiss an employee where the reason or principal reason for the dismissal is carrying out health and safety activities. A recent Employment Appeal Tribunal (EAT) decision has now confirmed that the scope of this protection can extend to "upset and friction" caused to others by an employee in implementing health and safety measures.

An employee had been tasked with implementing a new safety procedure but his colleagues, unaware of his mandate, were left upset by his "over-zealous" approach to implementing the new process. He was subsequently dismissed for the upset and friction his activities had caused. The Employment Appeal Tribunal held that the statutory protection covered protection from dismissal arising from the upset caused by legitimate health and safety activities where the employee had merely done what he was instructed to do – recognising that the carrying out of health and safety activities "will often be resisted or regarded as unwelcome by other colleagues", the EAT noted that on the facts here "the souring of relations, of the over-zealous manner in which [he] carried out his duties, [were] not matters which can be said to be properly separable from the carrying-out of those activities". There may be cases where an employee's conduct can be separated from the carrying out of the activities, such as where the conduct is unreasonable, malicious or irrelevant to the task in hand, but this was not the case here.

Many businesses have been working closely with employee representatives and employees in implementing health and safety measures in light of Covid-19 and this decision reinforces the need for clear communication on any measures being introduced and the process to be adopted.

Future proofing working arrangements

The pandemic has highlighted the need for flexibility in managing a workforce at any given time and, with many organisations also looking at incorporating revised working models, employers must now future proof their employment contracts and employee arrangements. Some of the legal and practical implications we are discussing with clients include:

• The importance of positive employee engagement and agreement in setting the tone when implementing change and ensuring continued success – tools such as employee pulse surveys and discussion groups can give employers a head start.
• The degree of flexibility which should be built into any working arrangements. The extent of changes to employment contracts, existing policies and procedures and the formulation of an agile working policy will all need to be considered. There are also GDPR implications to address, such as the issues that arise from processing personal data at home and the monitoring of agile workers.
• Checking the drafting of restrictive covenants to ensure the business is protected from any employees looking to branch out on their own or join a competitor.
• Compliance with legal duties around the health and safety of agile workers and how to enable workers to carry out their activities in a healthy, happy and productive manner. Factors to keep in mind include the home workstation assessment, provision of work equipment and the training of employees and assessors in setting up workstations. In addition, the impact of lone working on stress and mental health also needs to be carefully monitored with interventions in place.
• The financial and tax implications of any arrangement involving homeworking. Where expense payments or benefits in kind are provided to an employee, they are normally deemed to have been made by reason of employment and so are taxable. However, a number of complex exemptions can apply in the context of homeworking and so careful planning and consideration is needed.

Osborne Clarke can provide structured step-by-step advice to assist you through this process. Please contact your usual contact, or get in touch with one of our experts Claire Bowles, Jo Forbes, Olivia Sinfield and Michael Carter for more information. You can also review the legal risks associated with hybrid working more generally on our website.

Our webinar on 19 May 2021 will also look at what we consider to be the most pertinent data-related issues for HR over the next few months, including issues arising from the move to flexible and hybrid working, processing of health-related data and increased use of third party tools and technologies (particularly for monitoring and surveillance) – register here.