We get this question a lot at Supportis… can I ask about an applicant’s health at pre-employment stage?

Only in EXCEPTIONAL circumstances can you ask about an applicant’s health at pre-employment stage such as:

👉 to find out whether a job applicant will be able to carry out an intrinsic part of the job
👉 to find out if a job applicant can take part in any assessment to test their ability to do the job or to find out if reasonable adjustments are needed to enable a disabled job applicant to take part in any assessment
👉 to monitor the diversity of people applying for the job
👉 where another legal requirement means an employer has to ask health- or disability-related questions. For example, Merchant Shipping Regulations prohibit the employment of seafarers unless they have a valid medical fitness certificate

Our key word is NECESSITY – is it absolutely necessary to ask? 💡

Our golden rule is the information relating to health and/disability should be collected separately from other information given in the application for the job ✅

The Equality and Human Rights Commission (EHRC) has recently found that a care agency asked unlawful pre-employment health questions on a job application form.

The National AIDS Trust reported that Elite Careplus Limited (ECL) was questioning applicants’ health during their recruitment process.

The EHRC reminded employers that the Equality Act 2010 makes it unlawful for employers to ask about an applicant’s health or disability before they have been offered the job, or before including them in a pool of successful candidates to be offered a role at a later date, except in specified situations.

It has provided this information about pre-employment health questions.

The EHRC Chief Executive said ‘Disabled people often face significant barriers to employment and are twice as likely to be unemployed. No one should be put off from applying for a job out of fear of being asked detailed and unnecessary questions about their health. Employers might think they’re doing the right thing when they ask these questions, but not only are they unlawful, they risk ruling out great potential employees.”’

ECL, which has now changed its practices, previously included a medical questionnaire asking applicants if they ever had a number of health conditions. These included, but were not limited to:

• tuberculosis, asthma, bronchitis or chest complaints
• depression, mental illness or nervous breakdown
• dermatitis or skin trouble.

Potential recruits were also asked if there was:

• any current/recent medication condition or treatment which might affect attendance or performance at work
• any illness/medical condition that prevented you from attending work, normal duties or activities for more than one week during the past year

If you have any questions about HR or Employment law, please don’t hesitate to contact our friendly team today on 0161 603 2156 today to discuss how we can assist your business in staying legally compliant.

Equal pay

It has been confirmed by the Supreme Court in the case of Asda Stores Ltd v Brierley and others [2021] that Asda workers are entitled to make comparisons in pay whether they are supermarket workers or depot workers.

However, this may lead to implications for employers. The employment tribunal will be responsible for reviewing whether the work performed in these roles are of equal value and whether the reasoning behind Asda not paying the roles equally links to discriminatory reasons.

The same will apply to other supermarkets regarding equal pay claims. Claims from 2016 show that Asda supermarket workers who were predominantly women, were not receiving equal pay in comparison to Asda depot workers who were predominantly men.

Tribunal issues

Tribunals now face the issue of whether the two roles can compare their pay. It has been concluded that there are fundamental differences between Asda’s distribution and retail sectors. For instance, they are located in different environments, operate in separate industries and evolved separately over time.

Although elements such as hourly pay, bonuses, discount card eligibility, pension contributions and family friendly leave have significant comparisons. Asda have argued that these are not common terms, as both sectors were negotiated in different ways. As a result, Asda’s appeal was unsuccessful and the case has proceeded.

Summary

In conclusion, the tribunal deemed that if depot employees were employed at the claimants’ site, they would have been employed on substantially the same terms and would not have received the retail employees’ terms. Following from this the Supreme Court stated that where claimants and comparators are employed under different bargaining agreements, this can be “common terms”. Prolonged enquiries into whether or not comparators would be employed on the same terms depending on their establishment has been discouraged by the Supreme Court, as have appeals relating to the issue. Claimants are now showing that they perform work of an equal value, as the case returns to tribunal.

In 2020, the UK government announced that reforms to the off payroll working rules (IR35) would be postponed until 6 April 2021 due to the pandemic.

HMRC introduced IR35 (aka the ‘off-payroll working rules’) in April 2000 to legislate what it calls ‘disguised’ employment.

The name IR35 originates from this press release published at the time by HMRC.

So what is IR35?

IR35 assesses whether a contractor is a genuine contractor as opposed to a ‘disguised’ employee, for tax purposes.

IR35 are 2 sets of anti-tax avoidance legislation, designed to combat tax avoidance by employers and contractors who supply services to their clients via an intermediary, such as a limited company, but who would otherwise be deemed as an employee if the intermediary was not used.

IR35 seeks to limit contractors and their clients taking advantage of tax rules by working in a self-employed style, when they should be deemed employees.

We’re a small company. Does IR35 apply to us?

New IR35 rules apply exclusively to private sector medium-large sized businesses and all public sector companies. By virtue of the Companies Act 2006 provisions, small private sector businesses are exempt from the IR35 rules.

How do I know my business is classed as ‘small’?:

• Annual turnover must be less than £10.2 million;
• Balance sheet total must be less than £5.1 million; and
• You have up to 50 employees

I am a contractor working for a public sector/large private sector business. What does this mean?

• Under IR35, you must pay the same tax as you would if you were an employee. You may also be entitled to additional employee/worker rights (e.g. minimum wage, maternity pay, discrimination protections)
• You will also have to pay a ‘deemed employment payment’ when the current tax year elapses, to account for any tax deductions or NIC that an employee would have paid. Work out what you owe here

I operate as a business and am therefore outside of the IR35 rules. What does this mean?

If you operate as a genuine business, you are outside of the IR35 rules. Some indicators that you fall outside of IR35 include:

• You can pay yourself a salary
• You can withdraw further income as dividends (not subject to NIC) whilst your limited company pays tax only on its profits at the corporate 20% rate
• You have your own business insurance
• You own your own equipment
• You market yourself using a professional website
• You work with multiple clients

What do the IR35 changes mean?

In 2000, when IR35 first came into force, contractors were responsible for assessing their own IR35 status; it was the individual’s limited company/agency who had responsibility for accounting for any tax and NIC due where IR35 was applicable.

From April 6 2021, responsibilities for determining IR35 status and paying relevant tax will be passed from contractors to the private sector businesses engaging them – to align with the public sector.

Should HMRC decide status has been incorrectly assessed (operating inside IR35), the businesses will be held liable rather than the contractor.

IR35 private sector reforms exclude small business’, meaning contractors who engage their services will have to set their own IR35 status.

IR35 applies to me. What do I do?

You will have to pay the extra income tax and NICs. To find out your employment status for tax click here

To find out how much you will have to pay, click here

Also:

• Keep an eye on the news for any related updates
• Ensure to maintain consistent assessments of your engagements
• Pay your tax and NI relevant to your status and keep records of payment
• Make sure the work you provide complies with your written agreements
• Review your IR35 status if anything about your working practices changes
• Keep due diligence records
• Ensure communication and agreement with your contractors

Please note that this article is purely advisory, and the official government IR35 guidance is available here. Please give us a call on 0161 603 2156 if you have any further queries for anything HR or health and safety related, we will be happy to assist.

The UK left the EU on 31 January 2020, ending free movement with the introduction of an Immigration Bill and points-based system with the view to attract the high-skilled workers from the EU. Here are our most popular questions asked by Employers in relation to navigating HR post-Brexit:

I have EU workers in my business. What do I need to do?

Support EU/EEA/Swiss nationals in their application for settled/pre-settled status under the European Settlement Scheme by 30 June 2021.

Irish nationals don’t need to apply for settlement status by virtue of the Common Travel Agreement (CTA).

Are there any dates I need to note down as a HR professional?

1 January 2021

The new, points-based immigration system comes into force… find out more here

30 June 2021

The extended deadline for for EU/EEA/Swiss citizens who were in the UK before 11pm on 31 December 2020 to apply for the EU Settlement Scheme

1 July 2021

Employers need to check whether their EU/EEA/Swiss workers have the right to work in the UK, including through the EUSS

Am I entitled to ask my EU employees what their intentions are?

Yes, we recommend you hold an informal one-to-one to find out how they are feeling, if settlement status has been applied for, and to offer of help to navigate the process and complete the online application.

Do I have any obligations as the Employer if an EU worker can’t obtain settled status by 01/07/21?

Employees with no immigration status would be prevented from starting a new job or retaining their existing one from 1st July. Other factors must also be considered, for example accessing healthcare, or being prevented from renting accommodation.

The consequences of not securing immigration status are severe, so Employers must remind EU employees to apply for settlement status under the EU Settlement Scheme if they haven’t already done so and support them to do that before 30 June 2021.

Find out more…

For help navigating this often complex topic, please give our friendly expert team a no-obligation, free call on 0161 603 2156 to see how we can help you!

The Supreme Court has this morning dismissed appeals to pay an hourly rate for ‘sleep-in’ shifts; this will no doubt be a relief for care companies and investors alike, but a setback for carers and healthcare staff.

The ruling in the Mencap v Tomlinson-Blake case means the time a worker is required to sleep on site does not count towards minimum wage calculations.

“This ruling will be disappointing for any care worker who believes they should be paid minimum wage for the entirety of the time spent on ‘sleep-in’ shifts,” employment partner at law firm Shakespeare Martineau, Matt McDonald, said.

Implications for employers

This decision will no doubt come as a huge relief to employers in the care sector, as they could have been forced to pay substantial back payments (an estimated £400 million) if appeals were allowed by the Supreme Court.

Employers should however note the Supreme Court stating that not all workers who are allowed to take naps on shift are classed as a sleep-in worker and dependant on the facts of the case, they may be working, as opposed merely to being available for work, even if their work is only intermittent.

This judgment is the final word on the sleep-in exception in these proceedings.

However, many interested parties, including Mencap, believe that the NMW legislation covering sleep-in payments is outdated, unfair and they are calling on the Government for reform.

For advice around this topic, please give us a call on 0161 603 2156 for a free, no-obligation chat around how we can protect your business.

Case Spotlight: Northbay Pelagic Ltd v Anderson

In the recent case of Northbay Pelagic Ltd v Anderson, it was held at the Employment Appeal Tribunal (EAT) that the Employer’s decision to dismiss the employee, because the employee had installed a surveillance camera at work, was in fact unfair.

The complainant was a director and employee of the company, a fishing business, and relations between himself and other Directors had broken down.

In 2016, Mr Anderson was put on suspension for disobeying a reasonable management instruction, and subsequently dismissed for gross misconduct then removed as a director from the company.

There were various grounds given for his dismissal, including failure to follow management instructions and also that following the initial suspension, Mr Anderson had installed a surveillance camera inside his office. A claim was brought at the Employment Tribunal for unfair dismissal.

The tribunal considered that around the time of dismissal, Mr Anderon had raised suspicions around another Director that had sought access to the complainant’s computer password.

Tribunal Decision

The tribunal held that the complainant suspicions were reasonable; by setting up the surveillance camera, Mr Anderson had taken measures to see if his personal data was being accessed without his knowledge or consent. The camera was found not to be covert as it covered both the complainant’s office and another office next door, and also because there was other CCTV in the office building.

The Employment Tribunal upheld the claim and decided that Mr Anderson’s dismissal was unreasonable, as the camera was not covert, so using the camera as a reason for dismissal was not a reasonable ground.

The employer put in an appeal to the EAT and argued that the ET had decided that the dismissal was unfair instead of viewing the fairness through the eyes of the employer. The appeal was rejected, as it was held that the complainant’s actions were demonstrative of him trying to protect his interests as an employee, a director, manager and a shareholder of the business.

The Appeal Tribunal held that the privacy of the other staff in the office was not threatened by the installation of the camera, as there was no evidence of other staff being caught on camera, and it was only those who were trying to access Mr Anderson’s office that were captured on the camera.

Northbay failed to fulfil its obligation to balance the complainant’s interests in protecting his confidential information with the other staff’s privacy rights, the EAT found.

The EAT disagreed with the initial tribunal’s reasoning that the camera was not covert. However, the EAT upheld the decision that the dismissal of Mr Anderson fell outside the band of reasonable responses.

Mr Anderson’s failure to follow a management instruction was remitted to a fresh tribunal to reconsider.

Implications for Employers

If an employee installs a covert camera at the workplace, this could amount to serious or gross misconduct and/or breach of the implied term of confidence and trust between the employer/employee.

Careful investigation into the employee’s reasons for the covert surveillance must be undertaken by the Employer in these instances, for example if the employee has evidence that their privacy was at risk of being breached.

Employers should not jump straight to summary dismissal if a covert camera is found. Instead they should weigh up the employee’s interest to protect confidential information against its own interests, including the privacy rights of other staff, before deciding to dismiss.

While every case is dependant on the facts, Employers should approach this topic with caution; where the risk to privacy of other employees is negligible, a dismissal for gross misconduct may not be justifiable.

Further Advice

If you need any advice on this topic, or anything else HR-related, please give us a call on 0161 603 2156 today for a free, no-obligation chat around how we can protect your business.