Employment law 2020 roundup and what to expect in 2021

Summary of 2020 developments

The most notable changes to employment law in 2020 were, unsurprisingly, in response to the Covid-19 pandemic. However, there were also a small number of other developments that may have fallen below the radar but which employers should be aware of.

• In April 2020, all workers were given the right to receive a written statement of terms and conditions. Previously, this requirement only extended to employees, and written terms could be issued at any time within the first two months of employment. Now, all workers (i.e. all staff unless they are genuinely self-employed) have these rights and the written statement of terms and conditions must be issued on the first day of work, or before.
• The Parental Bereavement (Leave and Pay) Act 2018 also took effect in April 2020. This means that all employees who lose a child under the age of 18 or suffer a stillbirth after 24 weeks are now entitled to two weeks’ statutory leave. They can take this leave as one block of two weeks or two separate blocks of one week, and if they have over 26 weeks of service they will also be able to receive Statutory Parental Bereavement Pay.
• In relation to calculating holiday pay, regulation 16 of the Working Time Regulations 1998 was amended in April 2020 to increase the reference period for determining an average week’s pay for workers without fixed hours or pay, from 12 weeks to 52 weeks. This means that these workers are not disadvantaged by taking holidays at a quiet time of the year when weekly pay might be lower, or advantaged by taking holidays close to receiving payment of a bonus, for example.

There were also a few notable decisions in the courts in relation to the hot topic of employment status and self-employment.

In April 2020, the European Court of Justice considered whether a courier who was stated to be a self-employed independent contractor was in fact a worker under the Working Time Directive, in the case of B v Yodel Delivery Network Ltd. The Court found that he had a “great deal of latitude” in relation to how and when to carry out his work, that his independence did not appear to be fictitious and that there did not appear to be a relationship of subordination between the courier and Yodel. This suggested that he would not be a worker under the Directive. Whilst every case will turn on its own facts, this view was noteworthy because it represents a departure from the general trend of decisions that these type of staff are workers. The appeal in the case of Uber BV and others v Aslam and others against the widely-reported decision that Uber’s drivers are workers, was heard by the Supreme Court in July 2020. Judgment has recently been released, whereby the Supreme Court was unanimous in dismissing Uber’s appeal and upholding that Uber drivers are workers.

In Community Based Care Health Ltd v Narayan, the Employment Appeal Tribunal (“EAT”) found in late 2019 that a GP registered with a company providing out-of-hours medical services to the NHS, who had worked regular shifts at a single establishment for around 12 years, had been correctly characterised as a “worker”, even though there was no mutuality of obligation between the parties (to provide work and to undertake work), and she provided her services through a limited company. The EAT determined that a limited company could not satisfy the strict qualification and performance requirements imposed by the NHS nationally due to not being human, or a doctor, or capable of exercising medical judgement. This decision, which is potentially significant across the healthcare sector, has been appealed to the Court of Appeal and is expected to be heard in 2021.

Covid-19 pandemic

The Covid-19 pandemic featured at the front and centre of employment law changes in 2020, as the law had to evolve rapidly in line with the various Government decisions.

From 28 September 2020 it was a legal requirement that individuals self-isolate for 14 days if they had been contacted by NHS Test and Trace, returned from a country that requires quarantining or live in a household with anyone who has symptoms. From 14 December 2020 this period was reduced to 10 days. Employers who require their staff to attend work (or otherwise disobey these requirements) when they are required to self-isolate can be fined up to £10,000. In light of these rules it continues to be important to ensure that:

• staff are fully aware of their obligations;
• they do not feel any pressure to attend the workplace if they experience any symptoms; and
• accurate records are kept in respect of staff who have displayed symptoms, including how this has been handled, their test dates and results.

Employers are still able to furlough employees if they need to as the Coronavirus Job Retention Scheme (“CJRS”) is open until the end of September 2021. Furloughed employees will continue to be entitled to 80% of their salary for hours not worked (capped at £2,500) but employers will be required to make a contribution towards the cost of unworked hours of 10% in July and 20% in August and September.

Employers can also bring back employees who were previously furloughed to work on a part time basis (with their consent). It is also now open for employees who have been on maternity, paternity or long-term sick leave, to be placed on furlough, so there is a great deal more flexibility in the furlough scheme than previously. Employers should also be aware that Public Health England has issued new guidance to those categorised as extremely clinically vulnerable stating that, from 1 April 2021, they are no longer advised to shield.

Dental practices who undertake a mixture of private and NHS work can utilise the CJRS scheme but generally only in proportion to their private activity. The CJRS is not, however, open to individuals who are self-employed, including associates, hygienists and therapists. Those individuals would need to utilise the Self-Employed Income Support Scheme. However, to use this scheme, trading profits must be less than £50,000, which may well limit the number of clinicians who can access it.

Looking forward to 2021

Alongside the continuing implications of Covid-19, we expect Brexit to impact upon employment law in 2021.

Brexit

The UK officially left the EU on 31 January 2020. Up until 31 December 2020, there was a transition period during which most current EU laws, including in respect of employment rights, continued to apply in the UK. From 1 January 2021, the transitional arrangements in the withdrawal agreement came to an end and future UK-EU relationship agreements and new UK international agreements commenced.

Whilst it is unlikely that there will be substantive changes to established employment laws in the short to medium term, the biggest and most immediate change for dental practices is in relation to immigration and the ability to engage professionals from EU countries. While the UK was a member of the EU, EU citizens with a dental degree from an EU country were able to live and work freely in the UK based on the principle of free movement for EU citizens and since they benefitted from automatic recognition of their qualifications. Dental practitioners who have been living in the UK before 31 December 2020 will be able to apply for settled or pre-settled status under the EU Settlement Scheme by 30 June 2021 in order to remain living and working in the country and those who gained their professional qualifications in another EEA country but whose qualifications were formally recognised before the end of December 2020 will not be impacted.

Individuals from the EU who want to come to the UK to practice but who had not done so before the end of December 2020 will now be subject to visa requirements under a new points-based system. Going forward, dental practices are likely to need to take on the role of “sponsor” for dentists coming to work in the UK from EEA countries, which means having a sponsor licence and engaging dentists on an employed, rather than self-employed basis. In addition, professional qualifications will no longer be automatically recognised. As a result, there are likely to be associated costs and compliance responsibilities and it may well become more difficult, expensive and time-consuming to recruit dental practitioners and other staff.

Other developments on the horizon

The attempts to control the Covid-19 pandemic and the implications of Brexit continue to be the key features of 2021 so far. Both are likely to cause or exacerbate financial pressures on dental practices and so it will be important to keep up to date on any new support measures introduced by the Government. Ultimately some organisations will need to make contingency plans should restructures and downsizing become necessary.

It will therefore be important for employers to keep up to date on the laws around redundancy as changes may be introduced this year. For example, it is anticipated that the current protections against redundancy for pregnant women will be extended. At present, those on maternity leave who are at risk of redundancy must be offered suitable alternative roles in advance of others, but this protection ends once the individual returns to work. The anticipated changes will mean that the protection will start from the date the employee informs her employer that she is pregnant and will last for 6 months after she returns to work from maternity leave. This extended protection is also anticipated to be available to those taking adoption leave and shared parental leave.

This article was correct at 18 March 2021. Due to the nature of the topics covered subsequent changes may have come into effect after publication.