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Employee Benefits & Executive Compensation – Q1 2021 Newsletter

April 1, 2021

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Our colleagues in the Employee Benefits & Executive Compensation group have been busy tracking the many changes to laws affecting comp and benefits. In their Q1 2021 newsletter, they provide an overview of the guidance that emerged during this busy period, including ARPA and CAA as they impact pension and welfare plans, fringe benefits and student loan assistance. They briefly address the guidance and implementation freeze, and provide an overview of other important developments — all with the aim of helping plan sponsors digest and comply with new and often imminent compliance obligations.

To read the newsletter, please click here.

UK HR Two Minute Monthly: employment status, harassment and reasonable steps, workplace surveillance and unfair dismissal

The Supreme Court Delivers Verdict in Landmark Uber case

As we reported in our dedicated update, the Supreme Court gave judgment in the final appeal in relation to the Uber litigation at the end of February, unanimously concluding that the Uber drivers who brought claims against Uber in 2015 were workers within employment legislation.

Why this matters?

The outcome of this case has been long awaited given its importance to gig economy businesses. The Supreme Court found that the rights asserted by the drivers were not contractual rights but rather rights granted under statute. As such, while the contract between the parties is something that the courts can consider, the correct approach is to consider all the relevant circumstances, which will also include the relationship between the parties in practice and the general purpose of the legislation in question.

It is worth noting that this assessment must be carried out on a case-by-case basis and, as such, this decision does not determine the status of all gig employee workers. The issue of employment status therefore remains an area of debate.

Uber BV and others v Aslam and others

Employer unable to rely on “reasonable steps” defence in respect

Coronavirus (UK): Impact of the Budget announcement on the furlough scheme – key points for employers

The extended Coronavirus Job Retention Scheme (“CJRS”) had been expected to continue until the end of April 2021.  However, in light of the UK government’s recent announcement in relation to the gradual lifting of lockdown restrictions, the CJRS has been further extended until 30 September 2021.

Key details of the government’s Budget announcement on the CJRS

The Budget includes the following changes to the CJRS:

  • The CJRS will be extended until 30 September 2021.
  • Until 30 June 2021, the government furlough grant will continue to pay 80% of wages for hours not worked, capped at £2,500 per month. Employers will be liable for employer National Insurance contributions and employer pension contributions only.
  • Progressively, with effect from 1 July 2021 until the cessation of the CJRS on 30 September 2021 the following changes will be made:
    • From 1 July 2021: employers must contribute 10% towards the pay of furloughed employees, with the government grant reduced to 70%. The 80% furlough pay will continue to be capped at £2,500 per month.
    • From 1 August 2021: employers must contribute 20% towards the pay of furloughed employees, with the government grant reduced to 60%. The 80% furlough pay will continue to be

UK Supreme Court delivers verdict in landmark Uber case

Overview

The Supreme Court has unanimously concluded that the Uber drivers who brought claims against Uber in 2015 are workers within employment legislation, giving them the range of rights attached to that status, such as the national minimum wage, the right to paid leave and whistleblowing protection.

Facts and Employment Tribunal decision in 2016

As many of you will be aware, Uber is a ride-hailing service which operates through an app downloaded to a user’s smartphone. The app enables a user to request a ride and be picked up from a pre-selected location. 25 Uber drivers brought a case against the company, which reached the Employment Tribunal (ET) in 2016. The drivers sought to be categorised as workers as opposed to self-employed contractors. Uber’s position was that it simply provided a technology platform which facilitated the provision of private hire vehicles to customers. Uber argued that it served as an agent, with the driver and passenger entering into a direct contract for each journey.

The ET concluded that the drivers were workers. In reaching this decision, the ET considered the following factors:

  • Uber mandated drivers to accept bookings and drivers who repeatedly cancelled would face sanctions
  • Uber imposed conditions

Long Hot Summer? How should UK employers deal with the question of holiday during year 2 of COVID?

Lydia Octon-Burke considers the impact of the COVID-19 pandemic on annual leave entitlement and carry-over moving into 2021 and practical tips for employers.

At the beginning of another year impacted by COVID-19, many employers have found themselves with employees having large amounts of outstanding annual leave carried over from 2020. Stuck in lockdown once again, employees are increasingly less willing to want to take annual leave, given that COVID-19 is likely to be with us for many months to come. Even if the vaccine programme is successful, it is likely that limits on travel abroad and social interaction will continue for some time.

All workers/employees are entitled to 5.6 weeks’ annual leave in each leave year, which equates to 28 days for someone who works 5 days a week. This is made up of:

  1. Four weeks’ statutory leave
  2. 6 weeks’ additional leave

Additional leave is more flexible and able to be carried over through direct agreement between employer and employee. As a general rule, however, four weeks’  statutory leave was more restricted and could only be taken in the leave year to which it related (i.e. the “use it or lose it” rule). This was amended last year

Coronavirus (UK): Is ‘long-covid’ likely to be classed as a disability under the Equality Act?

This post considers whether ‘long-covid’ is likely to be classed as a disability under the Equality Act 2010, and provides practical guidance for employers.

At the time of writing, it is estimated that approximately 100 million people have now contracted Coronavirus. Whilst the majority of those infected go on to make a full recovery, some suffer continuing symptoms once the initial infection has gone. These symptoms are commonly referred to as “long-covid”. According to the NHS, some of the most commonly encountered symptoms of long-covid include; (i) extreme tiredness; (ii) shortness of breath; and (iii) problems with memory and concentration. A recent study estimated that there are currently 60,000 people in the United Kingdom alone suffering from long-covid.

Ultimately, some of those suffering from long-term health conditions may be classed as disabled under the Equality Act 2010 (“EQA”). This article considers the circumstances in which long-covid would classified as a disability under the EQA.

Definition of a disability under the EQA

The EQA prohibits discrimination in respect of numerous protected characteristics, including disability. Section 6 and Schedule 1 of the EQA define a “disability”. It is important to note that the legal definition of disability does not always reflect what

REMINDER: Colorado Now Requires Disclosure of Compensation and Benefits with All Job Postings and Advance Notice of Promotional Opportunities

Employers with at least one employee in Colorado should remember that they are now required to comply with the pay transparency and promotion transparency requirements of the Colorado Equal Pay for Equal Work Act, which took effect January 1, 2021.  The governing regulations can be found at 7 CCR 1103-13.  In addition, the Colorado Department of Labor and Employment (“CDLE”) has issued Interpretive Notice & Formal Opinion #9 (“INFO #9”), a non-binding interpretation regarding these requirements (“INFO #9”), which can be found here.

Pay Transparency

All job postings must now include the hourly or salary compensation, or compensation range, for the position and a general description of the benefits and other compensation that will be provided to the successful applicant.  Employers may use electronic links to compensation and benefit information, rather than including that information in the posting itself.

If compensation is stated as a range, that range must represent the lowest and highest pay that the employer in good faith believes it might pay for that particular job.  Relying on stale data regarding the filling of such positions in the past, or using the same blanket “range” for all positions, will

Coronavirus (UK): detailed guidance published on the extended furlough scheme – key points for employers

In our blog on 5 November 2020, we flagged that further government guidance on the extended Coronavirus Job Retention Scheme (“CJRS”) would be provided on 10 November 2020. HMRC has now published that guidance.

Key details of the government guidance

The updated guidance includes the following key details:

  • During the period 1 November 2020 to 31 January 2021, the government furlough grant will pay 80% of wages for hours not worked up, capped at £2,500 per month. Employers will be liable for employer National Insurance contributions and employer pension contributions only. The government will review the terms of the scheme in January 2021 and may then require that employers make a contributions towards wages (as it did under the original scheme).  This is likely to be dependent on the state of the economy and the general prevalence of the virus.
  • The extended CJRS applies to employees who were employed as at 30 October 2020, as well as employees who were made redundant or stopped working on or after 23 September 2020, if they are then re-employed by their employer.
  • Employers can make a claim under the extended furlough scheme in relation to employees who have not previously

Coronavirus (UK): further extension of the furlough scheme – key details for employers

The UK Chancellor of the Exchequer has, today, announced in Parliament, the extension of the Coronavirus Job Retention Scheme (“CJRS”) until the end of March 2021.

The scheme will continue to be on the terms as outlined in our previous blog on Monday until at least 31 January 2021, with the government grant at 80% of salary, capped at £2,500 per month. However, there will be a government review in January 2021 and it is possible that the government grant will, again, be reduced.

Full guidance on the CJRS extension will be published on 10 November 2020. The guidance on claims from February 2021 onwards will be published following the government’s review.

 

BCLP has assembled a COVID-19 Employment & Labor taskforce to assist clients with employment law issues across various jurisdictions. You can contact the taskforce at: COVID-19HRLabour&EmploymentIssues@bclplaw.com.

You can view other thought leadership, guidance, and helpful information on our dedicated COVID-19 / Coronavirus resources page

Coronavirus: changes to UK Job Support Scheme – key details for employers

We previously reported on the establishment of the Job Support Scheme (“JSS”).  The Chancellor of the Exchequer has, today, made a further announcement setting out significant changes to the JSS .  These changes are primarily aimed at providing support to businesses in Tier 2 which are not legally required to shut their premises as part of further lockdown measures, but which are suffering a significant decline in revenue.  However, the changes go even further than this.

Key details of the changes

The key details of the changes to scheme, which will apply to all of the UK, are as follows:

  • The JSS will apply to all businesses in every alert level (i.e. Tiers 1, 2 and 3).
  • Employees only need to work at least 20% of their normally working hours and be paid by their employer for those hours (not at least 33% of their normal working hours as originally required when the JSS was first announced).
  • Under the initial JSS announcement, for the hours not worked, the government and the employer were each required to pay one third of an employee’s salary. Following today’s announcement, the employer contribution will be reduced to just 5%.
  • The government will
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