Employment autumn update: News in brief

Published: 17th October 2021
Area: Corporate & Commercial

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A quick round-up of recent employment law developments

Carer’s leave to be introduced

The government has confirmed that it will be introducing carer’s leave “when parliamentary time allows”. The new statutory entitlement will be available to an employee irrespective of how long they have worked for their employer (a day one right). The person being cared for will include a spouse, civil partner, child, parent, a person living in the same household as the employee (other than by reason of them being their employee, tenant, lodger or boarder) or a person who reasonably relies on the employee for care. The person being cared for must have a long-term care need.

The entitlement will allow carers to take up to one week (five working days) of unpaid leave per year which can be taken either as a single block of one week or more flexibly on individual days.

In order to protect employees from being penalised at work for making use of carer’s leave, dismissals for reasons connected with exercising the right to carer’s leave will be automatically unfair.

Consultation on Sexual Harassment in the Workplace: Government Response

The consultation ran from 11 July to 2 October 2019 and it was found that many were supportive of a new duty to prevent harassment. The government, therefore, intends to introduce a duty on employers to prevent sexual harassment, in order to encourage employers to take positive, proactive steps to make the workplace safer for everyone. In the interests of providing clarity, the government will also introduce explicit protections from third-party harassment.

The government also intends to look closely at extending the time limit for bringing Equality Act 2010 based cases to the employment tribunal from three months to six months.

All of the commitments made as a result of the consultation will apply to Great Britain (England, Wales and Scotland) and those which require legislative changes will be introduced as soon as parliamentary time allows.

Coronavirus (COVID-19): right to work checks

Temporary changes to the right to work checks were introduced in March 2020 because of the pandemic. These changes allow employers to carry out checks over video calls and job applicants and existing workers to send scanned documents, or a photo of documents, by email or a mobile app, rather than sending originals.

The end date for these changes has now been deferred (again) to 5 April 2022. The government advises that the end date has been deferred to ensure that the scheme continues to operate in a manner that supports employers, whilst the government looks to implement a long-term post-pandemic solution.

Employers will not need to carry out retrospective checks on those who had a COVID-19 adjusted check between 30 March 2020 and 5 April 2022. Employers will maintain a defence against a civil penalty if the check they have undertaken during this period was done in the prescribed manner or as set out in the COVID-19 adjusted checks guidance.

From 6 April 2022, employers must once again either:

  • Check the applicant's original documents.
  • Check the applicant's right to work online, if they have provided the employer with their share code.

However, the Home Office has reiterated its intention to introduce a new digital right to work check solution to include many who are currently unable to use the Home Office online checking service, including UK and Irish citizens. This will enable checks to continue to be conducted remotely but with enhanced security.

Tipping and Service Charges – It’s a Load of Tronc!

The Government has responded (some may say at last!!) to the consultation on tipping, gratuities, cover and service charges which closed in 2016. The Government's proposals will benefit the UK’s 2 million hospitality workers by creating legislation around how tips, gratuities and service charges will be applied.

Whilst as always the devil is likely to be in the detail of any proposed legislation the recommendations will no doubt place a bigger burden on hospitality businesses to ensure that proper systems are in operation and that any tips are distributed fairly and without deductions (save for appropriate tax deductions, of course). Any new legislation will be included in the Employment Bill which will be progressed when parliamentary time allows. That may not be in this calendar year!

These proposals come at a time when around 80% of all tipping is now taken by cashless payment which is currently unregulated. Many hospitality businesses have previously been criticised for making deductions from cashless tips to pay for the additional bank/administration charges they incur.

It is proposed that legislation will be introduced to:

  • Ensure that employers do not make deductions from tips received for their staff (which will include any admin charges);
  • Require employers to introduce a policy on how tips will be dealt with (ensuring a fair and transparent process is adopted);
  • Allowing employees to make requests for information around the employers tipping record (any response to be provided within 4 weeks of any request); a
  • A statutory code of practice will also be introduced on tipping generally. Enforcement of these rights is likely to be in an employment tribunal where fines against employers and compensation awards given to the affected employees may be made.

Whilst these proposals will no doubt be good to strengthen the hospitality sector and encourage positive recruitment, there are some concerns that any additional costs in operating and managing cashless tips will cause hospitality businesses extra expense that they cannot recover. In addition, given some of the complexities around tips and managing tronc systems, some businesses may need to engage external partners to ensure tips are fairly distributed among staff, by establishing and operating a tronc system. These additional costs come at a time when the hospitality sector is struggling to return to some normality following the various lockdowns and forced closures.