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Returning to the Workplace – Government Guidance for a Covid-safe working environment from July 19

The UK Government announced that it would be lifting many of the restrictions that applied from 19 July and entering into what it terms Step 4 of its roadmap.  Part of Step 4 is that the government is no longer instructing people to work from home if they can and so employers can start to plan a return to the office. While there are already in place a number of guidance notes for employers on how to provide a Covid safe work environment, these are being amended from 19 July.  So what is the government guidance for employers going forward?… Continue Reading

UK Pensions: What’s TPR’s policy on policies?

One thing that jumps out at you the more you read the Pensions Regulator’s draft single Code of Practice is that trustees are expected to have a LOT of policies.

We can see the logic: to have an effective system of governance, proper processes need to be in place and trustees will need to think through risks and anticipate problems before they arise, planning for how they will resolve them if and when they do materialise. From the trustee’s point of view, a solid set of policies can help demonstrate that they are being thorough and organised in their approach … Continue Reading

UK Pensions: Don’t ‘do’ pensions? Think again…

The Pensions Regulator has had a busy lockdown. While some details of its new enforcement powers under the Pension Schemes Act 2021 remain to be finalised, the need to consider the implications of those changes when conducting a wide spectrum of corporate transactions is clear.

Merger and acquisition dealmakers, board members and others should be aware of the obligations – and the consequences of getting it wrong.

Much has already been said about the new criminal offences and civil penalties that could catch ‘normal’ corporate activity. But it is the increased notification requirements that could have the greatest practical impact … Continue Reading

Germany: Exclusion clauses put to the test

Regularly agreed in employment contracts, exclusion clauses shorten the statutory limitation period for claims arising in the employment relationship and ensure certainty between employer and employee especially with regards to claims that are years old. In a remarkable decision the German Federal Labour Court (BAG, 26.11.2020 – ref. 8 AZR 58/20) has fundamentally changed the case law with regard to the drafting of these clauses. A large number of the exclusion clauses used in practice are now likely to be ineffective.… Continue Reading

“Long Covid” and the implications for employers

“Long Covid” (or “post-Covid-19 syndrome”) is a condition where people who have contracted Covid-19 continue to experience symptoms for weeks or even months after their initial infection.  It affects individuals differently, and symptoms can range from fatigue, headaches, loss of taste or smell, lasting fever or anxiety, to respiratory difficulties, muscle weakness, blood clots and even organ damage.

The Office for National Statistics in the UK reported in April 2021 that an estimated 1.1 million people in the UK had symptoms associated with long Covid, with over two-thirds of these individuals having had (or suspected to have had) Covid-19 at … Continue Reading

Is the failure to enhance shared parental leave pay discriminatory when adoption leave pay is enhanced?

In the case of Price v Powys County Council, the Employment Appeal Tribunal have upheld the tribunal’s decision that there is no sex discrimination where an employer pays a man on shared parental leave less than a woman on adoption leave.

In the UK, Shared Parental Leave (SPL) provides flexibility for parents to take leave to care for their child. Eligible parents can take up to 50 weeks  SPL in the first year after the birth of their child, or in the first year after their child’s placement for adoption, with up to 37 weeks of Shared Parental Pay … Continue Reading

Who bears the investigation costs for compliance violations?

Carrying out investigations to determine violations of compliance rules can cause considerable costs for companies. In a recent decision, the German Federal Labor Court (BAG, 29.4.2021 – ref. 8 AZR 276/20) has now clarified the circumstances in which an employee must bear the costs of investigations in connection with allegations of breach of compliance rules by that employee.… Continue Reading

Right to work checks: Extension of the COVID-19 concession to 20 June 2021 – now extended to 31 August 2021

In order to obtain a statutory defence against illegal working, employers should check the right to work of all employees’ original documents in person on or before their employment commences.  In the absence of a correct check and in the event that an illegal working issue arises, this will assist the employer in avoiding civil liability.   As a result of the COVID-19 Pandemic, the UK’s Home Office introduced a concession under which employers have temporarily not been required to see an employee’s original document in person in order to carry out a compliant right to work check, and instead can … Continue Reading

COVID-19: Mandatory testing in companies

In view of worrying pandemic figures, the German Federal Government has amended the existing “SARS-CoV-2 Occupational Health and Safety Ordinance” (Corona-ArbSchV) (the Ordinance). Employers now face the additional obligation of offering COVID-19 testing to their employees, unless the employees work from home.

Introduction of mandatory testingContinue Reading

The National Minimum Wage and care workers who sleep in: Supreme Court decision

The Supreme Court handed down its decision in the joined cases of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and another (T/A Clifton House Residential Home) which concern an employee’s right to the national minimum wage for periods of time when they are required to remain at home on their shift and/or residential care workers who ‘sleep in’ but they are not actually performing some specific activity. The Supreme Court dismissed the two appeals, which will be welcomed by employers in the care sector, providing them with more certainty. In doing so the judges also reviewed previous cases … Continue Reading

The Right To Disconnect

News about young Wall Street analysts asking for an 80-hour working week and employees working from home for a year now due to the Covid pandemic gives rise to the question of whether employees have the right to disconnect. In this blog we will discuss recent legislative developments in the EU as well as the status of the right in the Netherlands.

European legislative initiative

On 21 January 2021 the European Parliament passed a legislative initiative on the right to disconnect. The initiative recommends implementing an EU directive that allows those who work digitally to disconnect outside their working hours … Continue Reading

Employment Appeal Tribunal rules on carry over of holiday pay.

The Employment Appeal Tribunal (EAT) has handed down its judgement looking at a workers right to claim holiday pay.

The claimant, Mr. Smith, worked for the respondent, Pimlico Plumbers between 2005 and 2011, and was considered throughout the six year period to be self-employed independent contractor. As such, he had no entitlement to paid annual leave, although he took periods of unpaid leave. In 2011, the claimant alleged that the respondent had fundamentally breached the contract and so terminated the contract, claiming for, amongst other things, holiday pay. The initial hearing considered the claimants status, and, having been held by … Continue Reading

UK Home Office announces further changes to immigration routes

Last week the Home Office published a series of changes to the Immigration Rules, many of which will take effect on 6 April 2021.

Graduate Route
In welcome news to many UK employers, the Home Office is introducing a new Graduate route into the UK (under a new section in the rules, called Appendix Graduate). Whilst UK graduates will need to meet a points threshold (in line with the new points based system), applicants will meet this by satisfying the essential criteria to the immigration route: (1) successfully completing their studies with an approved institutions; (2) obtaining a bachelor’s degree, … Continue Reading

UK Pensions: Data transfers from the EU likely to continue uninterrupted

We’re pleased to report what looks like some good news for pension schemes on data protection.

The European Commission has published a draft decision as to the “adequacy” of the UK’s data protection laws. If the draft decision is formally approved by EU Member States, this would allow personal data to flow from the EU or EEA to the UK uninterrupted after a temporary arrangement put in place at the start of this year expires. This is the so-called “data bridge” agreed as part of the Brexit Trade and Cooperation Agreement, which will last until the end of April or … Continue Reading

Budget – Immigration Proposals

In addition to the measures referred to in the Budget which are aimed at addressing the immediate challenges of COVID-19 and putting the UK’s public finances on a sustainable footing in the medium term, the Government stated in the Budget that it recognised the importance of creating the conditions for an investment-led recovery driven by private sector growth. In view of this, in the Budget, the Government has made a number of immigration policy decisions which it regards as modernising the UK’s immigration system to help the UK attract and retain the most highly skilled, globally mobile talent – particularly … Continue Reading

Extension of Coronavirus Job Retention Scheme until end September 2021

In the budget on 3 March 2021, the Chancellor announced that the Coronavirus Job Retention Scheme (the CJRS) would be extended until the end of September 2021. The CJRS was due to end on 30 April 2021, but with many restrictions (in particular in the hospitality and leisure sectors) not being fully lifted until June at the earliest, the Chancellor was under pressure to extend the scheme. There are however changes to eligibility criteria and contributions under the scheme.

From 30 April 2021 until 30 June employees who are placed on furlough under the CJRS will continue to receive 80% … Continue Reading

“Stale” and “ineffective” training is insufficient to establish the reasonable steps defence

A recent decision of the Employment Appeal Tribunal (EAT) in Allay (UK) Limited v Mr S Gehlen provides useful guidance to employers seeking to rely on the “reasonable steps” defence to a claim of discrimination, harassment or victimisation.

An employer can be liable for acts of discrimination, harassment and victimisation carried out by its employees in the course of employment, even if the employer was not aware of those acts (section 109(1) of the Equality Act 2010). However, there is a potential defence available to an employer under section 109(4) of the Equality Act 2010 if it can show that … Continue Reading

Supreme Court decision in Uber v Aslam

The Supreme Court has today handed down its decision in Uber BV and others v Aslam and others, upholding the Employment Tribunal decision that the drivers are ‘workers’ within the meaning of S.230(3)(b) of the Employment Rights Act 1996 (ERA 1996) and the equivalent definitions in the National Minimum Wage Act 1998 (NMWA 1998) and the Working Time Regulations 1998 (WTR 1998).

There are three levels of employment status in the UK: self-employed, worker and employee. Self-employed individuals are not entitled to the same employment protections as workers and employees, and so, for example, are not entitled to protection … Continue Reading

What options do working parents have when trying to balance their work and home responsibilities during the pandemic?

The current national lockdown in the UK has imposed school and childcare closures for all but those children of essential key workers. Even prior to lockdown measures, many children were being sent home regularly to isolate, due to a positive case of Covid-19 in their class or school bubble. This has inevitably left many working parents struggling to balance their work with caring responsibilities, whether this is balancing duties while working from home, or managing childcare in order to go into the workplace if working from home is impossible.

To date, there are currently no emergency provisions in place for … Continue Reading

The COVID-19 vaccine @ work: a Dutch employment law perspective

At a time when the world is suffering from the COVID pandemic, hope rests in the advent of Covid-19 vaccines. In addition, employers are trying to anticipate the ever-changing situation in the workplace. In doing so, they must adhere to existing laws and regulations, which were not written with a situation like this in mind. The vaccination program is slowly but surely getting underway in the Netherlands. The question becomes: as the COVID-19 vaccine becomes available to everyone in the near future, is it possible to require employees to get the vaccine before returning to the workplace?

Can employers require Continue Reading

Germany: COVID-19-vaccination and employment law

In Germany, employers are obliged to take all necessary measures, including those to protect against infection (such as offering working from home, increased hygiene protections, social distancing and behavior) and offering voluntary company vaccination programs, in order to protect the health and safety of the workers in the company and to fulfil their obligations under occupational health and safety law. The newly developed vaccines are offering some hope in turning the tide in the fight against COVID-19. The Federal Labor Court (Bundesarbeitsgericht – BAG) had already provided guidance to employers on their obligations and liability in connection with employer-initiated … Continue Reading

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