Government confirms plans for all tips to go to workers

The government has published its response to its 2016 consultation on tipping, gratuities, cover and service charges and has confirmed its intention to bring forward legislative measures to ensure tips, gratuities and service charges go to workers in full. The legislative measures will include:

  • requirements for employers in all sectors to not make any deductions from tips received by their staff, including admin charges, other than those required by tax law
  • requirements for employers to distribute tips in a way that is fair and transparent, with a written policy on tips, and a record of how tips have been dealt with. Employers will be able to distribute tips via a tronc, and a tip must be dealt with by no later than the end of the month following the month in which it was paid by the customer
  • provisions to allow workers to make a request for information relating to an employer’s tipping record. Employers will have flexibility in how to design and communicate a tipping record, but they should respond within four weeks
  • requirements for employers to have regard to a new statutory Code of Practice on Tipping which will support the legislation.

Where employers fail to comply with the new measures, workers will be able to bring employment tribunal claims.

The provisions will be included in the upcoming Employment Bill which will be brought forward when parliamentary time allows.

Gender pay gap reporting to commence from 5 October

The Equality and Human Rights Commission (EHRC) confirmed in February 2021 that enforcement action against employers for failing to report their gender pay gap data for the last reporting year (2020/21) would be suspended for six months and so would not begin until 5 October 2021.

This additional six-month period is almost at an end and so, if they have not already done so, private sector employers with 250 or more staff must now submit their 2020/21 gender pay gap reports, using the snapshot date of 5 April 2020, by no later than 5 October 2021. Employees who were furloughed on reduced pay under the Coronavirus Job Retention Scheme as at 5 April 2020 should not be included when calculating the hourly pay figures; where this gives a misleading impression, employers may want to explain this in a voluntary supporting narrative accompanying their report.  
 

COVID-19 vaccinations mandatory for care homes staff

The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 have now been approved by both House of Parliament and will come into force on 11 November 2021. The regulations effectively require staff working in registered care homes in England to be fully vaccinated against COVID-19 unless they’re medically exempt.

The regulations provide that the care home must secure that people do not enter the care home premises (excluding any surrounding grounds) unless they fall into one of the specified exceptions. Those exceptions include that:

  • they’re a resident of the care home
  • they’ve provided evidence of their full COVID-19 vaccination status, or evidence that for clinical reasons they cannot be vaccinated
  • it’s reasonably necessary for them to provide emergency assistance in the premises, or urgent maintenance assistance with respect to the premises, e.g. an emergency plumber
  • they’re attending the premises in the execution of their duties as a member of the emergency services
  • they’re a friend or relative of the resident, or they’re visiting a resident who it’s believed is dying
  • it’s reasonably necessary for them to provide comfort or support to a resident in relation to their bereavement following the death of a friend or relative
  • they’re under the age of 18.

The regulations are to be reviewed by the government, and a report published, within one year after the date on which they come into force and within every year after that.

Reforming statutory sick pay

Following its summer 2019 consultation entitled “Health is everyone’s business: proposals for reducing ill health-related job loss”, the government has now published its response which takes into account the impact of the coronavirus pandemic on work and health. The response confirms that the government:

  • will not be proceeding with the consultation proposal to introduce a new right for non-disabled employees to request work or workplace modifications on health grounds – note that the existing duty on employers to make reasonable adjustments for disabled staff under the Equality Act 2010 will remain in place
  • will be taking forward its manifesto commitment to encourage flexible working and to consult on making it the default unless employers have good reasons not to – that consultation will be published “in due course”
  • will develop a national information and advice service for employers on health, work and disability, with material designed to help manage common health and disability events in the workplace
  • has asked the Health and Safety Executive (HSE) to work on developing non-statutory guidance to support disabled people and those with long-term health conditions to remain in work (and the HSE will also explore introducing statutory guidance in this area)
  • will not be implementing the range of measures proposed to reform statutory sick pay (SSP) at this stage because “now is not the right time to introduce changes to the sick pay system”. However, the government does acknowledge that several important questions posed in the consultation on the future of SSP require further consideration, so reform in this area is still possible in the future
  • is exploring extending fit note certification to a wider group of healthcare professionals
  • intends to introduce digital certifying of fit notes (to remove the current requirement for them to be signed in ink) and create a new interactive version of the fit note which will provide advice and support for suggested workplace adaptations/modifications to encourage work and health discussions between patients and employers
  • will test a subsidy scheme to enable SMEs and self-employed people to access quality occupational health (OH) support and will work with key stakeholder organisations to explore how it may be able to support innovative ideas that increase the purchasing of OH by SMEs and the self-employed
  • will continue to promote and raise awareness of the Access to Work programme.

Continuous employment defined

When a new employee is added to the payroll it is the employers' responsibility to ensure they meet the employees’ rights. One of the issues that must be considered is the employees’ length of continuous employment. Continuous employment is calculated from the first day of work without a break.

The length of continuous employment gives certain rights to employees, including maternity pay, flexible working requests and redundancy pay.

Infrequent breaks in normal employment still count towards a continuous employment period. These are:

  • sickness, maternity, paternity, parental or adoption leave
  • annual leave
  • employment overseas with the same company
  • time between unfair dismissal and an employee being reinstated
  • when an employee moves between associated employers
  • military service, for example with a reserve force
  • temporary layoffs
  • employer lockouts
  • when a business is transferred from one employer to another
  • when a corporate body gets taken over by another because of a legal change

Any days that an employee is on strike do not count towards continuous employment, but the days are not treated as a break.

National Minimum Wage reminder for summer staff

We would like to remind any students and seasonal staff that work part time, for example in a summer job, to ensure they are being paid the National Minimum Wage (NMW). All workers are legally entitled to be paid the NMW. This includes temporary seasonal staff, who often work short-term contracts in bars, hotels, shops and warehouses over the summer. 

HMRC helped some 155,000 people recover more than £16 million in pay which was due to them. HMRC is reminding workers to check their hourly rate of pay, and to also check any deductions or unpaid working time. The most common causes of minimum wage underpayment are deductions and unpaid working time such as travelling time between work locations and training time.

The current National Minimum Wage (NMW) and National Living Wage (NLW) rates came into effect on 1 April 2021. The NLW is the minimum hourly rate that must be paid to those aged 23 or over. The hourly rate of the NMW (for 21-22 year olds) is £8.36. The rates for 18-20 year olds is £6.56 and the rate for workers above the school leaving age but under 18 is £4.62. 

Employees that are not being paid correctly can make an official complaint through GOV.UK or contact the ACAS Pay and Work Rights Helpline on 0300 123 1100.

Updated working safely guidance to apply from 19 July 2021

With England having moved to step 4 of the roadmap out of lockdown from 19 July 2021, the government has published updated guidance on working safely during coronavirus. The guidance, which is to be kept under review, has been re-categorised into the following six sector-specific guides:

  • construction and outdoor work
  • events and attractions
  • hotels and guest accommodation
  • offices, factories and labs
  • restaurants, pubs, bars, nightclubs and takeaway services
  • shops, branches and close contact services.

There is also a general step 4 overview which makes clear that the government is no longer instructing people to work from home and businesses no longer need to implement social distancing in the workplace. However, it warns that businesses still have a legal duty to manage risks to those affected by their business, and the way to do this is to carry out a health and safety risk assessment, including the risk of COVID-19, and to take reasonable steps to mitigate the identified risks. The onus is on businesses to decide what mitigations are appropriate to adopt. The guidance also states that the government expects and recommended a gradual return to the workplace over the summer, and employers should discuss the timing and phasing of a return with their workers. 

The sector-specific guides each set out six priority actions for businesses to take from 19 July 2021 to protect their staff and customers. These are:

  1. Complete a health and safety risk assessment that includes the risk from COVID-19
  2. Provide adequate ventilation
  3. Clean more often
  4. Turn away people with COVID-19 symptoms
  5. Enable people to check in at the business venue
  6. Communicate and train.

Employers are advised to give extra consideration to workers who are at higher risk, discussing their individual needs and supporting them in taking any additional precautions advised by their clinicians, and those facing mental and physical health difficulties. 

New COVID-19 vaccination guidance for employers

Public Health England has published a new guide for employers on COVID-19 vaccination. The guide encourages employers to support the government’s COVID-19 vaccination programme and it covers the following subjects:

  • why supporting vaccination of employees against COVID-19 is important
  • what employers can do to support the vaccination of their workforce
  • resources to help employers promote vaccination to their workforce.

In particular, the guide links to the previously published employer toolkit (which has now been updated) on supporting employees to get the COVID-19 vaccine. The toolkit can be downloaded as a zip folder and comprises an employer briefing sheet, posters, email signatures, a Q&A document, web banners and other resources.

Off-payroll working rules best practice

The rules for individuals providing services to certain private sector organisations via an intermediary such as a personal service company (PSC) changed from 6 April 2021. The new rules mean that medium and large-sized clients are now responsible for deciding whether the intermediaries’ legislation applies to their workers. This includes charities and third sector organisations. The changes mainly apply to businesses with an annual turnover of more than £10.2 million.

HMRC has laid out some helpful best practice points to be aware of in complying with the rules:

  • consider how the changes affect your organisation
  • upskill those responsible for making decisions
  • review current workforce
  • talk to your contractors
  • operate PAYE where appropriate
  • use the RTI flag
  • have a clear process in place for disagreements
  • maintain an audit trail – this is a legal requirement
  • utilise the resources and guidance available to you including HMRC’s off-payroll working guidance.

This is also relevant to agencies of any size who supply contractors that may be affected by these rules.

Mandatory vaccinations for those working in care homes

The government has published its response to its consultation on making COVID-19 vaccination a condition of deployment for workers in care homes in England and has confirmed that it will now bring forward regulations to implement a mandatory vaccination requirement to protect all care home residents who are clinically vulnerable to COVID-19. These regulations, which will amend the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, will require all service providers of nursing and personal care regulated by the Care Quality Commission (CQC), in care homes in England, to allow entry to the premises only to those who can demonstrate evidence of having had a complete course of an authorised COVID-19 vaccine (or evidence that they are medically exempt from vaccination). 

The requirement will only apply indoors and will exclude residents, friends or relatives of residents who are visiting, persons providing emergency assistance or urgent maintenance work in the care home, and those under the age of 18. 

The consultation response also lists three key changes to the proposals set out in the original consultation document:
 

  • extending the scope of the policy to all CQC-registered care homes in England which provide accommodation for persons who require nursing or personal care, not just those with residents over the age of 65
  • extending the vaccination requirement to all persons who enter a care home building, regardless of their role, rather than just care home staff and volunteers. This will therefore include other healthcare professionals, tradespeople, hairdressers, beauticians and CQC inspectors, but will not apply to people who only work in the outdoor surrounding grounds of care home premises
  • widening of the proposed exclusions.

If approved by Parliament, there will be a 16-week grace period from when the regulations are made to when they come into force to enable staff who haven’t yet been vaccinated to take up the vaccine, which means the mandatory vaccination requirement is likely to apply from October 2021. 

A further consultation will be launched shortly on whether to make COVID-19 vaccination a condition of deployment in other health and social care settings.