Key employment law updates | September 2022

Important changes to Right to Work checks from 1 October 2022

As a result of the COVID pandemic, the government introduced a temporary adjustment to right to work checks, allowing employers to carry out remote right to work checks over video calls, whilst checking potential applicants and existing workers scanned in documents, rather than originals. However, this temporary adjustment is set to end on 30 September 2022.

Therefore, from 1 October 2022, employers will have 3 options to carry out right to work checks, before employment begins:

• Manual – perform an in-person manual check using original documents ensuring the original document are valid, belong to them and is untampered with. Employers should then take a signed and dated copy of the document(s) and retain these securely. A list of acceptable documents for manual right to work checks can be found here.

• Online – perform an online check using the Home Office online service. This involves candidates and any existing workers providing the employer with their date of birth and a share code which is then checked via the online service, free of charge. It is important that employers satisfy themselves that the photograph on the online right to work check is of the individual presenting themselves for work i.e. through a video call or in person meeting. Since 6 April 2022, any prospective candidate with a Biometric Residence Card, Biometric Residence Permit and/or Frontier Worker Permit must obtain a share code and use the online service, as physical cards are no longer acceptable. Employers should use the Home Office online right to work checking service here.

• Engage – the services of a certified Identity Service Provider ("IDSP") to use Identification Document Verification Technology ("IDVT") to check current passports of British/Irish nationals on behalf of employers. However, employers will retain overall responsibility and this will involve an 'imposter' check element. Employers must therefore obtain a copy of the IDSP report showing that the worker has the right to work in the UK and visually check that record is consistent with who they see in front of them. This visual check can be carried out via video link or in person – but a secure record of that visual check must be retained with the date. Employers seeking to instruct an IDSP will need to do their research to understand the varying costs and services that are being provided. At the time of writing, 11 certified IDSP organisations have been approved by the government and we would recommend sticking to this list.

All employers must carry out complaint right to work checks on their employees and workers to provide themselves with a statutory excuse against a civil penalty. Employers can face a civil penalty of up to £20,000 for each illegal worker. In addition, businesses could lose their sponsorship licence to sponsor overseas nationals and risk criminal prosecution if the employer knowingly employs an individual who does not have the right to work in the UK. It is therefore vital that staff responsible for right to work checks in your business understand the options available from 1 October 2022 and have the correct processes/systems in place to ensure compliance.

Retained EU Law (Revocation and Reform) Bill – what you need to know

The Government has published the Retained EU Law (Revocation and Reform) Bill (the "EU Bill"), which aims to automatically repeal any retained EU law. Under the current proposals, all EU law will expire on 31 December 2023, unless it is specifically retained in; however, the expiration date can be extended until 31 December 2026.

The EU Bill has potentially significant and wide-reaching consequences for employment law, including the end of TUPE, paid holiday, the 48-hour working week. Although it is not known which rights will be retained through alternative UK law, the potential impact on employers and employees is huge.

Should the EU Bill be passed and for example, the right to paid holiday be removed, whether businesses can actually change employee's entitlement to leave will be dependent on their employment contracts and consultation may be required. There are also commercial decisions for businesses – how would changing employee's annual leave entitlement affect employee engagement/retention/recruitment? Will reducing paid leave impact mental health and potential burn out within the workforce?

While we cannot predict whether the EU Bill will be passed, businesses should be mindful of its progress and potential impacts.  For now at least it's business as normal, we will keep you posted!

Government brings out new guidance on employment status

You may have missed the Government's new summer guidance that aims to be the "one-stop-shop" for individuals and businesses to help them understand which employment rights apply to them.

The guidance pulls together employment status case law into one place for everyone to access. Gig economy workers should benefit the most from this new guidance as it clarifies their entitlements. This follows from the Supreme Court's landmark judgment in relation to Uber workers, which established that those working in the gig economy qualify as 'workers'.

The possible impact is that staff may query their status and ultimately lead to employment status claims being brought if certain rights are denied, such as paid holidays. Employers should review this guidance and ensure that contracts and other documents consistently define the working arrangements, in particular with self-employed consultants and casual workers.

Heatwave prompts HSE to warn employers to prepare for warmer future

The Health and Safety Executive ("HSE") has warned employers that they need to prepare for a "warmer future". This is in light of our record-breaking heatwaves during the summer. Employers have a legal obligation under the Management of Health and Safety at Work Regulations to evaluate risks to the health and safety of workers including, in this case, extreme temperatures.

As we reported in our July employment updates, there is currently no maximum temperature for workplaces, but workers are entitled to an environment that controls any risks to their health and safety. Heat is classed as a hazard and comes with its own legal obligations. John Rowe, HSE's Acting Head of Operational Strategy, said:

“All workplaces need to acknowledge that the working environment is changing. There are low-cost adaptations to the structure of work, but things like improved ventilation and air conditioning should also be considered which will involve investment in the workplace".

This is unlikely to be at the forefront of employers minds as we head into winter; however, it is something to keep under review and prepare for before next summer.

Tipping Bill making its way through Parliament

The Employment (Allocation of Tips) Bill passes second reading in Parliament. The Bill is set to benefit more than two million workers. The Bill aims to provide tips and service charges to all workers and make it unlawful for businesses to hold back tips from staff.

The Bill also develops a new statutory Code of Practice, advising how to distribute tips amongst workers. A worker can also request their employer's tipping record, which will enable workers to challenge an employer's practices through employment tribunal claims.

Bill of Rights Bill 2022-23 dropped by government

As mentioned in our July employment updates we reported that the Government had introduced the Bill of Rights Bill which would significantly change the UK's human rights framework by repealing the Human Rights Act 1998 and creating a new domestic human rights framework around the European Convention of Human Rights, to which the UK will remain a signatory.

However, it has now been reported that Liz Truss' Government are dropping the Bill and will not proceed to a second reading in its current state. It is currently unclear if the Government will re-visit the Bill.