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Further guidance regarding critical workers

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Further to the Government announcement on 19th July 2021, and our bulletin on 20thJuly 2021, further guidance has now been published regarding critical workers

Please note that this guidance applies to those working in the following sectors:

  • Energy
  • Civil nuclear
  • Digital infrastructure
  • Food production and supply
  • Waste
  • Water
  • Veterinary medicines
  • Essential chemicals
  • Essential transport
  • Medicines
  • Medical devices
  • Clinical consumable supplies
  • Emergency services
  • Border control
  • Essential defence outputs
  • Local government

If you feel that you fall within one of the above industries, we would strongly advise that you read the full guidance on what to do to obtain the exemption on the following website:

https://www.gov.uk/guidance/nhs-test-and-trace-workplace-guidance#guidance-for-employers

For frontline workers in health and social care, the press release regarding exemption can be found at the link below and further information obtained from Public Health England/NHS trusts/relevant social care organisations:

https://www.gov.uk/government/news/frontline-health-and-care-staff-can-work-rather-than-self-isolate

Right to work guidance post BREXIT

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The UK left the EU on 31 January 2020. There was a “transition period” until 31 December 2020. During the transition period, free movement effectively continued between the UK and the EU, with EEA and Swiss citizens and their family members who were legally residing in the UK in accordance with EU regulation continuing to be able to do so.

 

EEA and Swiss citizens residing in the UK by 31 December 2020 can apply for immigration status under the EU Settlement Scheme. Those who have resided in the UK lawfully for five years will be eligible for “settled status” and will be free to live and work in the UK indefinitely. Those EU citizens who have resided in the UK for fewer than five years by the time they apply will be eligible for “pre-settled status” until they acquire the necessary five years to obtain settled status but will also be free to live and work in the UK during this time. Applications for status under the EU Settlement Scheme must have been submitted by 30 June 2021. Failure to acquire settled status or temporary status will render people “illegal immigrants” and subject to removal.

 

EU citizens who arrive in the UK from 1 January 2021 will need to meet the requirements of the new UK points-based immigration system, in the same way as non-EU citizens (see Legal update: New points-based immigration system announced).

 

Employers could continue to confirm an EEA national’s right to work using only their passport or national ID card until 30 June 2021. From 1 July 2021, employers will no longer be able to accept an EEA or Swiss passport alone as evidence of a permanent right to work in the UK for new employees. They will need to see proof of immigration status which will be either under the EU Settlement Scheme or the new immigration system.

 

Employers are not expected to differentiate between EU citizens who arrived in the UK before 11.00 pm on 31 December 2020 (under EU free movement) and those who arrived from 1 January 2021 (under UK immigration laws). There will also be no mandatory requirement for employers to undertake retrospective checks on EU citizens employed before 30 June 2021.

Provided a right to work check is undertaken in line with right to work legislation and guidance, and the employer does not know or have reasonable cause to believe the employee has no right to work, the employer will maintain a continuous statutory excuse against a civil penalty if the employee is subsequently found to be working illegally

 

Where a right to work check has been conducted using the online service, the information is provided in real-time directly from Home Office systems and there is no requirement to check any of the documents listed below.

 

List A – acceptable documents to establish a continuous statutory excuse

 

  • A passport (current or expired) showing the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK.
  • A passport or passport card (current or expired) showing that the holder is a national of the Republic of Ireland.
  • A current document issued by the Home Office to a family member of an EEA or Swiss citizen, and which indicates that the holder is permitted to stay in the United Kingdom indefinitely.
  • A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted unlimited leave to enter or remain under Appendix EU to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules.
  • A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder indicating that the person named is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK.
  • A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK.
  • A current Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the named person is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.
  • A birth or adoption certificate issued in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.
  • A birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.
  • A certificate of registration or naturalisation as a British citizen, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.

 

List B Group 1 – documents where a time-limited statutory excuse lasts until the expiry date of leave:

 

  • A current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question.
  • A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder which indicates that the named person can currently stay in the UK and is allowed to do the work in question.
  • A current document issued by the Home Office to a family member of an EEA or Swiss citizen, and which indicates that the holder is permitted to stay in the United Kingdom for a time limited period and to do the type of work in question.
  • A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted limited leave to enter or remain under Appendix EU to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules.
  • A document issued by the Bailiwick of Jersey or the Bailiwick of Guernsey, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has made an application for leave to enter or remain under Appendix EU to the Jersey Immigration Rules or Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008, on or before 30 June 2021.6. A frontier worker permit issued under regulation 8 of the Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020.
  • A current Immigration Status Document containing a photograph issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK and is allowed to do the type of work in question, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.

 

List B Group 2 – documents where a time-limited statutory excuse lasts for six months

 

  • A document issued by the Home Office showing that the holder has made an application for leave to enter or remain under Appendix EU to the immigration rules (known as the EU Settlement Scheme) on or before 30 June 2021 together with a Positive Verification Notice from the Home Office Employer Checking Service.
  • A document issued by the Bailiwick of Jersey or the Bailiwick of Guernsey showing that the holder has made an application for leave to enter or remain under Appendix EU to the Jersey Immigration Rules or Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 on or before 30 June 2021 together with a Positive Verification Notice from the Home Office Employer Checking Service.
  • An Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service.
  • A Positive Verification Notice issued by the Home Office Employer Checking Service to the employer or prospective employer, which indicates that the named person may stay in the UK and is permitted to do the work in question.

 

It is important that were time limited rights are in effect, to diarise a recheck in good time and to take appropriate action promptly where needed.

 

For immigration queries, please contact the home office directly.

Critical workers – exempt from self-isolation in exceptional circumstances

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You may have heard on the press conference last night that critical workers that are fully vaccinated (that is being 14 days after their 2nd dose) with be exempt from self-isolation in exceptional circumstances, i.e. only for the purposes of going to work. Individuals that have been identified as a ‘close contact’ but still continue to attend work under this policy must take a PCR test as soon as possible followed by daily lateral flow tests before attending work each day of their self-isolation period. If they test positive or start to show symptoms they must immediately self-isolate and will no longer be able to attend work.

 

This particularly policy is intended to be highly limited and focused to prevent public harm from disruption to critical services. It will only apply to named individuals from a specific set of organisations. Companies that have workers that are exempt, will receive a letter from the relevant government department.

 

Full details are in this press release:

https://www.gov.uk/government/news/fully-vaccinated-critical-workers-to-be-able-to-leave-self-isolation-in-exceptional-circumstances

 

In closing, if you do not receive a letter then you and your workplace will continue to follow the rules on self-isolation.

REMINDER: ENFORCING ANNUAL LEAVE DURING PERIODS OF FURLOUGH

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As furlough is due to end on the 30th September 2021 now would be a good time to have a look at your employees accrued but untaken annual leave to see if you could reasonably enforce any of this leave whilst your employees are still on annual leave.

To enforce a period of annual leave, you must give your employees written notice of the dates you intend to enforce, with at least double the length of notice as the time you are enforcing. Your adviser will be able to draft this letter for you.

Enforcing annual leave throughout a period of furlough will help you manage and reduce the number of holidays to be taken on your employees return to work and the contribution from the government job retention scheme will help reduce the cost you will need to pay out for these periods of annual leave.

Please note, periods of annual leave which are taken during a period of furlough must be paid at 100% of the employees normal wage/ salary, however you will receive the current contribution from the job retention scheme towards this.

You should remain fair and consistent when enforcing employees to use annual leave to avoid potential claims of discrimination.

Call 01422 822842 for further advice.

 

REMINDER: FURLOUGH CONTRIBUTIONS TO REDUCE FROM 1ST JULY 2021

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The Coronavirus Job Retention Scheme has been extended until 30th September 2021, however like last year, the government plan to reduce the amount of help they will contribute to employers with employees on furlough. From the 1st July the first reduction for this year will come into effect.

Employees will still be entitled to receive 80% of their normal salary/wage to a maximum of £2500 per month  from you whilst they are furloughed, however the government will reduce their contribution towards this, as follows:

 

July

Government contribution towards hours not worked – 70% up to £2187.50

Employer contribution for hours not worked– 10% up to £312.50

 

August

Government contribution towards hours not worked – 60% up to £1875

Employer contribution for hours not worked– 20% up to £625

 

September

Government contribution towards hours not worked – 60% up to £1875

Employer contribution for hours not worked– 20% up to £625

 

Please note, in addition to the above, you can if you wish, continue to top up your employees’ wages above the 80% and the £2500 cap, at your own expense.

 

The Right to be Accompanied – Key Information

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What is the right?

Section 10 of the Employment Relations Act 1999 gives a worker a right to be accompanied where they:

  • are required or invited by the employer to attend a formal disciplinary, appeal or grievance hearing, and
  • reasonably request to be accompanied at that hearing.

 

Who can be a companion?

A worker is entitled to request to be accompanied by:

  • a person employed by a trade union of which he is an official within the meaning of sections 1 and 119 of the Trade Union and Labour Relations (Consolidation) Act 1992;
  • an official of a trade union (within that meaning) whom the union has reasonably certified in writing as having experience of, or as having received training in, acting as a worker’s companion at disciplinary or grievance hearings, or
  • another of the employer’s workers

 

What is the role of a companion?

During the hearing, a worker’s companion should be permitted to:

  • put forward the worker’s case;
  • sum up a worker’s case;
  • respond on the worker’s behalf to any view expressed at the hearing; and,
  • confer with the worker during the hearing.

An employer does not have to permit the companion to:

  • answer questions on behalf of the worker;
  • address the hearing if the worker does not wish for them to do so; or,
  • do any of the permitted actions in a way that would prevent the employer from explaining their case or would prevent any other individual at the hearing from putting forward their contribution.

 

Do I have to allow time for a worker to get a representative?

Yes. If a worker has a right to be accompanied, and their chosen companion is not available at the time of the proposed hearing, the worker can make a request for the hearing to be postponed. The alternative arrangements should be reasonable and be before the end of the period of five working days (beginning with the first working day after the day proposed by the employer). An employer should allow worker time off from their duties during working time in order to accompany a colleague.

 

What are the ramifications for not allowing this right?

Workers can make a claim for breach of the right to be accompanied and compensation can be awarded of up to two weeks’ pay.

In addition, failure to allow a worker to be accompanied to a disciplinary, appeal or grievance meeting can also impact the fairness of a disciplinary sanction and/or other claims arising out of a grievance, appeal or disciplinary.

 

Right to work checks: adjusted measures extended to 20th June 2021

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Further to our previous update on 26th April 2021, we can confirm that the temporary measures for right to work checks will now be end on 20th June 2021 (this has been extended from the previous date of 16th May 2021). This new date brings the changes in line with step 4 of the government’s roadmap out of lockdown.

During this period, employers can continue to carry out right to work checks over video calls. In addition, for both job applicants and current workers, they can send in scanned documents or a photo of their documents by mobile app or email. They are not required to send in originals. Retrospective checks will not be needed for employees that have had their right to work checks completed as part of the temporary Covid-19 adjustments where they have been done in the prescribed manner.

 

From 20th June 2021, employer’s must carry out checks as advised in our update on 26th April 2021, namely:

  • Check an applicant’s original documents; or,
  • If the application has provided a share code, then can check right to work online.

 

For further guidance on this, employers should contact the Home Office or a specialist in immigration.

Furlough Scheme – Contribution Levels

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As we approach 1st July, we would like to take this opportunity to remind clients of the changes to the contributions for the Coronavirus Job Retention Scheme:

 

  MAY JUNE JULY AUGUST SEPTEMBER
Government contribution for hours not worked 80% up to £2,500 80% up to £2,500 70% up to

£2,187.50

60% up to

£1,875

60% up to £1,875
Employer contribution: employer NI contributions and pension contributions
Employer contribution for hours not worked N/A N/A 10% up to £312.50 20% up to £625 20% up to £625
For hours not worked, the employee is to receive 80% up to £2,500 per month

 

Employers continue to be fully responsible for payment of any hours worked by the employee.

Right to work checks: End to temporary Covid-19 measures

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During the covid-19 pandemic, temporary measures had been put into place by the Home Office from 30 March 2020 whereby right to work check could be carried out via video conferencing with the applicant or worker to then send a scanned copy or a photograph of the documents by email or a mobile phone app to the employer. They were not required to send in the originals.

 

When the temporary arrangements were initially introduced, it was stated that additional checks would be required within 8 weeks of the temporary measures coming to an end. It has now been confirmed by the Home Office that these additional checks will not be required and that there will be a statutory defence against civil penalties provided the check was done in the prescribed manner or in line with the Covid-19 adjusted checks guidance.

 

This temporary arrangement will come to an end on 16 May 2021 and, thereafter, employers must:

  • Check an applicant’s original documents; or,
  • If the application has provided a share code, then can check right to work online.

 

For further guidance on this, employers should contact the Home Office or a specialist in immigration.

Dismissal of a Bus Driver for hitting cyclist is deemed fair by the Employment Tribunal.

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Mr Sam Beech was employed by Lothian Buses as a Bus Driver until he was dismissed on 27th September 2019 for hitting a cyclist.

 

Mr Beech had been driving his bus on 21st September 2019 when a cyclist hit his outside mirror. Mr Beech sounded his horn which then led the cyclist to move in front of the bus whilst swearing and making obscene gestures. Following this, the bus then hit the cyclist and he fell from his bike. Mr Beech called the emergency services and the Respondent’s control room however he did not disembark from the vehicle for 9 minutes and, even when he did, he proceeded to take pictures of the bicycle prior to checking the welfare of the cyclist.

 

An investigation meeting was held on 23rd September 2019 during which an accident report was completed, and Mr Beech was suspended for careless and reckless driving. He was subsequently dismissed on 27th September 2019, a decision which was upheld on appeal. Mr Beech argued that the cyclist had been under the influence of alcohol and that he did not have lights on his bike. Lothian Buses did not wait for the police report before making their decision, but Mr Beech argued that the police deemed he was not blameworthy for the accident.

 

It was noted by the Employment Tribunal that Lothian Buses had failed to contact the police during the investigation, it was found that the dismissal was fair in the circumstances and that Mr Beech had been dismissed for his conduct. Mr Beech argued that a final written warning would have been an appropriate sanction, but the Employment Tribunal did not accept that argument and deemed that the dismissal was within the band of reasonable responses. It was concluded by the Tribunal that “The respondent had a genuine belief that the claimant had acted in a dangerous and unacceptable manner and given the nature of the claimant’s duties where he worked unsupervised and was required to ensure the safety of passengers and other road users, the decision to dismiss the claimant was a reasonable one.”

 

Call us for advice on 01422 822842.