UK employers must perform per employment checks to ensure that a prospective employee has the right to work in the UK - Right to Work (RTW) checks. Due to COVID-19 restrictions the UK Government permitted employers to perform online checks in lieu of checking physical documents in the actual presence of the individual.
This flexibility on RTW checks in the UK was due to end on 21 June 2021 but has recently been extended to 31 August 2021.
Until this date RTW checks can therefore continue by either checking your new candidates ID documents virtually using a scanned copy and a video call or online* using the gov.uk checking service. Any new starters from 1 September 2021 will need to have their documents physically checked again by a company representative or by using the gov.uk checking service. However given that remote working may be here to stay, at least in some form, the requirement to check physical documents is likely to become increasingly problematic.
If you cannot meet the candidate in person, the guidance states that their documents must be with you physically to check by means of a video call with the candidate. This of course presents a potential issue logistically for either you or the candidate ensuring the required documents are safely posted/couriered.
Note - Only the Employer can carry out these checks, third party checks are not permitted.
*online checks can only be used for holders of biometric residence permits, residence permits and those who have immigration status via the EU settlement scheme or points-based system.
The EU Settlement Scheme permits EU nationals who were residing in the UK as at 31 December 2020 to apply to remain in the UK either under Settled or Pre-Settled Status (depending on whether the applicant had more or less than five years residence). The deadline for applications was 30 June 2021.
From 1 July in order to evidence their settled/pre-settled status to an employer (to satisfy the employer’s Right to Work check requirements) an existing employee or candidate should use the UK Government’s online right to work service. The employee or prospective employee is required to enter their passport number and date of birth into www.gov.uk/prove-right-to-work and is then issued with a share code valid for 30 days. The employee may give this code directly to their employer or choose to send it via the online right to work service. The employer must enter the share code and the employee's date of birth into www.gov.uk/view-right-to-work to view the employee’s profile. As an employer you should check these details carefully, including the photograph to confirm the individual’s identity. This profile can be retained as evidence of the online right to work check. If the profile page notes that the individual’s right to work is time limited, a record should be kept of that expiry date so that a follow-up check can be done prior to the employee's right to work coming to an end.
The UK Home Office announced on 1 June 2021 that under its EU Settlement Scheme continuity of residence in the UK can be preserved in circumstances where an applicant has been absent from the UK as a result of COVID-19. Highlights of the policy include as one example - “A person’s continuity of residence in the UK will not be broken if they have a single absence of up to 12 months for an important reason”. The following are listed as acceptable (non-exhaustive) reasons for late submission:
When applying under the scheme the applicant should upload all relevant evidence online and may be contacted by a caseworker before a decision is made on the application.
Navigating the Right to Work checks and the EU Settlement Scheme can be tricky – if you need any guidance please get in touch.
A recent case in the UK Taylor v Jaguar Land Rover Ltd (JLR)) saw a record compensation pay out of £180,000 to an ex-employee whose non-binary status led to significant harassment from colleagues, against which JLR failed to protect them. In this case the employee was transitioning from male to female and regularly wore female clothes to the workplace. The key takeaway was that the employee wanted to be recognised as gender fluid or non-binary. The employee was made to use the disabled toilets and told to expect harassment. The employment tribunal found that the claimant had the characteristic of gender reassignment, despite the fact that they were transitioning and had not undergone any surgical reassignment, and therefore were protected under the Equality Act 2010. JLR wrongly assumed that recorded training and awareness of D&I was understood by their managers which in fact was not the case as the managers’ evidence showed no recollection of having read the D&I policy.
Get in touch if you need help creating your own D&I policy and ensuring its contents are understood by your workforce.
A reminder that the agreed harmonisation of notice periods and terms between white-collar and blue-collar workers was implemented by the Austrian Government as of 1 July 2021 (previously scheduled for 1 January 2021). This may impact any terminations carried out from 1 July 2021.
A bill approved by the French Parliament will require companies with over 1,000 employees to have a minimum of 30% women by 2027 and 40% by 2030 in their senior management teams.
Employers can continue to pay their employees benefits and subsidies up to an amount of 1,500 euros tax-free or grant them benefits in kind. This regulation was initially limited to 30 June 2021 however the German Government recently announced an extension to 31 March 2022.
The maximum limit remains 1,500 euros and anyone who has already received 1,500 euros as a Corona bonus from their employer in 2020 cannot receive another tax-free pay-out in 2021 or 2022. However, if an employer has paid its employees a Corona bonus of less than 1,500 euros an additional amount can be paid until 31 March 2022 – for example; if a company has paid a Corona bonus of 1,000 euros in 2020, a bonus of 500 euros can be awarded up until 31 March 2022.
As before, the Corona bonus payment must be paid in addition to the wage already owed under contract and must not be based on an agreement or commitment made before 1 March 2020. For example an agreed performance bonus cannot in principle be converted into a tax-free payment.
Health & Safety
The SARS-CoV-2 Occupational Health and Safety Ordinance was announced and entered into earlier this year. The current ordinance was due to expire on 30 June but with effect from 1 July 2021 until at least the end of September there will be new Corona occupational health and safety rules for employers.
Employers are required to permit employees to work from home wherever possible. However, if compelling operational reasons make it necessary to continue an operation from a workplace the employer must meet certain occupational safety standards and prepare a ‘hygiene concept’ that detail how operational processes can be maintained to reduce the risk of infection – the concept must be made available to all employees.
In April 20921 the Italian Government and the National Trade Unions signed a Protocol on Health and Safety measures in the workplace, with the aim of containing the spread of the COVID-19 virus. The government advised that employers must implement H&S protocols aimed at reducing the risk of spread of COVID-19 within the workspace. Employers must generally use remote working arrangements where possible, if employees must complete their duties at a workplace they must observe social distancing of at least one metre and use protective personal equipment.
The Polish Government is currently reviewing a draft amendment to the Labour Code which proposes a number of provisions aimed at making remote working more accessible for employees.
However at first glance the proposal appears to work against flexibility and looks to introduce a good deal of additional formality.
Remote working extending beyond one day per month will be classed as ‘full scope’ remote working and as such subject to a range of obligations on both parties.
The formalities will include the need to introduce agreements with employees (or trade unions) that outline the conditions applicable to working from home. The agreements will need to include detail on the costs of homeworking (electricity, internet etc) and the amount payable to the employee as an allowance to cover these costs, provisions to cover the health and safety aspects of working from home, and regard for how communication is maintained with employees operating remotely.
There is no current timetable for when the changes may be implemented, and when/if they are ushered in the draft currently states that an employer will have six months after its implementation in which to accommodate the requirements.
To support continued teleworking arrangements the Romanian Government Emergency Ordinance no. 36/2021 (GEO no. 36/2021) permits the parties to a contract (employer and employee) to use an advanced electronic signature or a qualified electronic signature – one that can show an electronic time stamp or qualified electronic time stamp, and qualified electronic signature of the employer - for signing employment contracts or contract addendums.
The Ordinance confirms that this fulfils the legal requirement of having written form for Individual employment contracts.
The Ukraine has introduced better workplace rights for fathers. The changes are effective from 9 May 2021 and include:
Workplace policies should be updated to reflect the changes.
On 7 June 2021 Brazil issued a new order in response to the issues facing the employment sector as a result of COVID-19. The New Emergency Program for Maintenance of Jobs and Income in Brazil contains a number of key employment-related measures, some of which simply reinstate the provisions contained in the earlier executive order (which has since become Law no. 14,020/20).
The main measures are:
Currently there is no entitlement to paid sick leave for employees in Saskatchewan, however the government has proposed Bill 603 which, if passed, will entitle employees to 10 days paid sick leave in a 52 week period. This will increase to 14 days paid sick leave in a 52 week period when a state emergency has been declared which relates to a communicable disease (17(1) of The Emergency Planning Act).
British Columbia introduces paid leave for COVID-19 related reasons and mandates permanent paid leave from 2022.
Employees in British Columbia are now entitled to three paid sick leave days if unable to work because:
This is paid directly by the employer, although in some cases up to $200 per employee per day may be claimed for reimbursement from the government.
The above COVID-19 related sick leave days are in addition to the unpaid leave currently available under the Employment Standards Act and is in effect until 31 December 2021. A mandate for permanent paid sick leave has also been approved, to commence after the expiry of the paid COVID-19 leave, in 2022. This permanent paid leave will be broader than the paid COVID-19 leave. Further details will become available after consultation.
Quebec – Bill 96 - An Act respecting French, the official and common language of Quebec
Bill 96 was tabled to the National Assembly on 13 May 2021. The Bill clarifies and reinforces the previous rules and their application by the Office québécois de la langue française (“OQLF”) as well as providing for the addition of some new items. The Bill is based on the following principles:
Canada - New Federal Statutory Holiday
Federally regulated businesses and the federal government will observe a new annual statutory holiday on 30 September 2021. The National Day for Truth and Reconciliation aims to “honour Survivors, their families, and communities, and ensure that public commemoration of the history and legacy of residential schools remains a vital component of the reconciliation process” in response to the calls for action in response to the injustices inflicted on First Nations, Inuit and the Métis Nation, including the forced removal of children from their families to attend residential schools and the abuse the children experienced there.
While federally-regulated employees will be entitled to pay for this holiday, employees of private businesses will not be unless implemented by their employer at a company level. At this time it is unclear as to whether private employers will take steps to implement this on a voluntary basis.
On 19 June 2020 legislation in Hong Kong was amended to enhance harassment protection. These amendments came into force on 19 June 2021 and are summarised below.
The Saudi Ministry of Human Resources and Social Development has announced that a coronavirus vaccine will be a mandatory requirement from 1 August 2021 for:
The practicalities of how the proposed requirement will work are yet to be clarified, as are any exemptions and acceptable brands of vaccines.
From an employer perspective, they will have the ability to insist that employees attending a workplace are vaccinated and therefore there may be grounds for disciplinary proceedings on the basis of an employee’s refusal to comply with a reasonable management request where employees need to attend a workplace. For those employees who are working remotely, it is as yet unclear as to whether the new rule can be relied upon.
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