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COVID-19 / Coronavirus: HR frequently asked questions in multiple jurisdictions

Summary

We understand that our clients and contacts will be addressing complex COVID-19 related HR issues in multiple jurisdictions. BCLP, together with our local counsel friends, have produced a global Q&A document covering 35 jurisdictions.

Please download our global Q&A document here.

The document covers the following questions:

  • What if an employee refuses to attend work due to fear of the coronavirus?
  • What if an employee refuses to undertake work travel to an ‘at risk’ area?
  • Can an employee be stopped from holidaying to an ‘at risk’ area?
  • If an employee is off sick due to the coronavirus are they entitled to sick pay?
  • What should we do if someone suffering from the coronavirus comes into the workplace?
  • What if the workplace needs to be closed?
  • Can an employee be required by their employer to ‘self-isolate’?
  • What physical measures should employers be taking?
  • How should employers deal with discriminatory behaviours?

If you have any questions that we have not covered, please contact any member of the team and we could be happy to help.

IR35 – 5 key milestones to ensure you’re ready for the new UK regime

Summary

With the revised IR35 (off-payroll working) rules coming into force in the UK for private sector employers in just a few weeks, are you ready for the new regime? Here are 5 key actions to benchmark your readiness.

Are you definitely in scope for the new IR35 rules?

‘Small’ companies can continue to operate the existing IR35 regime (obligation to assess IR35 status and account for tax/NICs falls on the Personal Service Company (PSC)), rather than apply the new regime which puts the obligation on the fee payer/client.

‘Small’ companies are those that satisfy at least two of the following requirements:

  • annual turnover not more than £10.2 million;
  • balance sheet not more than £5.1 million; and
  • not more than 50 employees.

If you are a subsidiary within a group, your parent company must also satisfy the small company test for the exemption to apply.

Have you mapped all your Personal Service Company (PSC) relationships?

This includes identifying both direct engagements with PSCs as well as those provided through an agency.

Have you set up robust processes to make consistent employment status determinations and appropriately communicate them?

The client (the recipient of the consultancy services) must take reasonable care determining whether the consultant would have been an employee if they were engaged directly. HMRC expects you to make a correct and complete determination, and preserve sufficient records to show how the decision was reached. Blanket assessments of a PSC population as a whole are unlikely to be

UK HR Two Minute Monthly: philosophical belief; equal pay; sexual harassment

Summary

Our February 2020 update outlines key UK employment law developments from January. It includes cases on ethical veganism as a philosophical belief, equal pay and the difficulties in defending such claims, the impact of the drafting of the employment contract on territorial scope, the EHRC’s technical guidance on sexual harassment in the workplace with practical steps employers can take to tackle harassment, and the FCA’s letter on non-financial misconduct for wholesale general insurance firms. We also outline other points of note, including the draft Parental Bereavement Leave Regulations 2020 and changes to the ICO guidance on the timescales for complying with a data subject access request.

Ethical veganism held to be a philosophical belief

An employment tribunal has found that a belief of ethical veganism is a protected philosophical belief under the Equality Act 2010. The Claimant, a qualified zoologist and vegan since 2000, had worked in animal protection most of his working life. He adhered to the philosophy of the Vegan Society and exhausted all reasonable steps to ascertain whether a product or service complied with ethical veganism.

The tribunal noted that “ethical veganism” is not just about choices in diet, but also choices relating to what a person will wear, the personal care products they will use, their hobbies and their jobs. The tribunal also referred to the definition provided by the Vegan Society, “A philosophy and way of life which seeks to exclude, as far as possible and practical, all forms of exploitation and cruelty to

UK HR Two Minute Monthly: religious discrimination; TUPE; IR35

Summary

Our first update of 2020 outlines key UK employment law developments over the last month. It includes cases on the definition of ‘employee’ under TUPE, the impact of a job evaluation survey in relation to equal pay, direct maternity discrimination, dress codes and religious discrimination, loss of privilege, and a recent tax tribunal decision on the application of IR35. We also outline other points of note, including the publication of the ICO’s new draft guidance on Subject Access Requests.

Dismissal violated employee’s freedom of expression under Article 10 ECHR

The European Court of Human Rights has held that that an employee’s right to freedom of expression under Article 10 ECHR was violated after he was dismissed for posting on a personal knowledge-sharing website.

The employee described himself in his website blogs as an expert in HR management who worked at a large bank, but did not mention his employer by name.

The employee argued that the termination of his employment breached his right to freedom of expression and appealed to the ECHR. The Court addressed four main questions when considering whether the right to freedom of expression had been infringed:

  • Nature of the speech – the Government argued that as the blog was only addressed to HR professionals (rather than to the public generally) Article 10 was not engaged. However, the ECHR noted that free speech does not only protect comments that demonstrably contribute to a debate on a public matter.
  • Motives of the author – in this case,
  • UK HR Two Minute Monthly: covert surveillance; holiday carry over; sexual orientation discrimination; interim relief

    Summary

    Our December 2019 update outlines the key UK employment law developments over the last month. It includes cases on covert surveillance, sexual orientation discrimination when there is no identifiable victim, harassment under the Protection from Harassment Act 1997, the doctrine of state immunity as it applies to British civilians working in the UK for a foreign state, the test for interim relief in whistleblowing claims and the latest ECJ decision on holiday carry over in sickness absence cases. We also outline other points of note, including the Government’s response to the Women and Equalities Committee report into the use of NDAs in discrimination cases and an independent review of the international evidence on the impact of minimum wages.

    Covert CCTV surveillance to monitor workplace theft was not an infringement of employees’ right to privacy under Article 8 ECHR

    The European Court of Human Rights has held that the Spanish courts did not fail to protect the Article 8 ECHR rights of employees when they upheld their dismissals based on footage obtained from concealed cameras in the workplace.

    The employees worked as supermarket cashiers. An investigation was launched after significant stock discrepancies were identified, which included installing both visible and concealed cameras. Notices were put up in the supermarket to inform customers and staff that CCTV was being used, but staff were not told about the concealed cameras.

    The covert CCTV helped identify the five cashiers who were involved in the thefts and all were dismissed. Their unfair dismissal claims

    UK HR Two Minute Monthly: religious discrimination; third-party harassment; investigations

    Summary

    Our November update considers recent developments in employment law, including cases on religion and belief discrimination, third party harassment and investigations. We also outline other points of note, including the new EU Whistleblowing Directive and the EHRC’s Guidance on NDAs.

    Dismissal not unfair where in-house counsel recommended changes to investigation report

    The EAT has held that a dismissal was not unfair where a draft investigation report prepared by HR and an investigator was altered on the recommendation of in-house counsel.

    In this case, the in-house solicitor had advised the investigator to remove his evaluative opinions and conclusions of whether the employee’s conduct amounted to misconduct, and to limit the findings to whether there was a prima facie case to answer. This was on the basis that the conclusions should be left to the disciplinary panel that was subsequently appointed.

    The EAT upheld the Tribunal’s decision that the overall dismissal was still fair as there was no evidential material that had been withheld from the investigation report for review by the disciplinary panel.  As part of this decision, the EAT took into account that the appeal hearer (who was a barrister) reviewed the draft investigation reports and did not find that the report was changed in order to make the employee’s dismissal more likely, and no pressure had been applied to the investigators.

    Why this matters?

    This case is a useful reminder about the scope of the investigator’s role in a disciplinary procedure.  At the outset of an investigation, the

    UK HR Two Minute Monthly: whistleblowing; religion or belief discrimination; employment status

    October 9, 2019

    Categories

    Our October update considers recent developments in employment law, including cases on the whistleblowing public interest test, whether vegetarianism is a protected belief under discrimination law, and employment status. We also outline other points of note, including guidance published by the Banking Standards Board on regulatory references, the latest employment tribunal statistics and revised immigration arrangements in the event of a no-deal Brexit.

    Raising data protection concerns was sufficient to satisfy the whistleblowing public interest test

    The Employment Appeal Tribunal (EAT) has confirmed that an employee was entitled to whistleblowing protection when she had a reasonable belief that alleged data protection breaches by her employer were in the public interest.

    The employee worked for a small charity which among other things supports victims of domestic violence. Due to performance concerns, the employee’s probationary period was extended. The employee subsequently raised concerns that, given the nature of the sensitive and confidential personal information she dealt with, the charity was in breach of data protection legislation by failing to provide her with her own mobile phone and also with secure storage facilities to hold client records. The employer subsequently terminated her employment on performance grounds. The employee brought a claim that she had been automatically unfairly dismissed for blowing the whistle.

    The employment tribunal found that the complaints raised by the employee were not in the public interest as they concerned her own contractual position, which prevented her from succeeding in her whistleblowing claim. However, on appeal, the EAT disagreed. The employment

    Asset Purchasers: Beware Bans on Salary History Inquiries

    When one employer purchases the assets of another and intends to employ some or all of the seller’s employees, it is very common for the asset purchase agreement to require the seller to disclose certain personnel information regarding those employees.  Often this disclosure includes such items as name, title, hire date, current salary, and other compensation and benefit information.  However, such provisions may violate state and local bans on salary history inquiries.

    To date, fourteen states and Puerto Rico have prohibited or restricted private sector employers from seeking information about a prospective employee’s past compensation.  In some of those states, employers are permitted to ask about compensation history only at a certain point in the hiring process.  But in most, employers are never allowed to seek this information.  Many local governments have also enacted their own bans.

    Colorado’s new statute is typical.  Effective January 1, 2021, it will be unlawful for employers to “seek the wage rate history of a prospective employee or rely on the wage rate history of a prospective employee to determine a wage rate.”  The statute defines “wage rate” broadly to mean (a) for hourly employees, the hourly rate plus the value per hour of all other compensation and benefits received, and (b) for salaried employees, the total of all compensation and benefits received.  Given the remedial purpose of the statute – to eliminate pay gaps based on gender and race – it is likely that courts will construe the statute broadly in favor of employees

    New Overtime Rule More Employer-Friendly Than Last Attempt

    Today, the U.S. Department of Labor finally announced its long-awaited changes to the regulations regarding overtime compensation. Effective January 1, 2020, the minimum salary required for most exemptions under the Fair Labor Standards Act will rise from $455 per week to $684 per week (or from $23,660 to $35,568 annualized). The minimum salary for the “highly compensated employee” exemption will rise from $100,000 to $107,432 per year.

    Additionally, employers will be permitted to use nondiscretionary bonuses and other incentive payments (including commissions) to satisfy up to ten percent (10%) of the required minimum salary, as long as that compensation is paid at least annually. And if an employee fails to earn sufficient incentive compensation in a 52-week period to maintain “exempt” status, the employer may make up the shortfall (up to 10% of the minimum required salary) in a one-time payment in the first pay period after the end of the 52-week period.

    The “final rule” announced today is more employer-friendly than the Department’s last attempt to update the overtime regulations, which was enjoined by a federal court in 2016 before the changes could take effect. The final rule issued in 2016 would have raised the minimum salaries for exemption considerably higher, making an estimated 4 million workers eligible for overtime pay, and it would have provided for automatic increases in the salary thresholds going forward. The final rule announced today is predicted to make 1.3 million workers overtime-eligible and does not provide for any automatic adjustments in the future.

    Colorado Employees Lose it Over Use-It-Or-Lose-It Vacation Policies

    Colorado employees are pushing back against the recent decision allowing use-it-or-lose vacation policies in Colorado.

    In Nieto v. Clark’s Market, Inc., 2019 COA 98 (Colo. App. June 27, 2019), a division of the Colorado Court of Appeals held that the Colorado Wage Claim Act does not prohibit employers from imposing conditions on the right to be paid for accrued but unused vacation upon termination.   In that case, the employer’s policy provided that terminating employees would not be paid for accrued but unused vacation if they were discharged or if they resigned with less than two weeks’ notice.  The Court held that the Wage Claim Act only requires payment of vacation that has been “earned in accordance with the terms of any agreement” and that employers and employees may agree to impose conditions on payment for accrued but unused vacation.  Therefore, under Nieto, use-it-or-lose-it vacation polices are now permissible in Colorado.

    Not surprisingly, employees (and their lawyers) are pushing back, focusing on two unanswered questions in the Nieto decision.

    Seizing upon the word “agreement” in the statute, some employees contend that Nieto applies only to actual contracts between the employer and the employee and not to policies unilaterally imposed by the employer.   The Court in Nieto expressly declined to address this issue because neither party had raised it.  While individual vacation agreements with each employee would be unwieldy and impractical in most cases, employers should at least consider ensuring that all employees have received a copy of the vacation policy –

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