COVID-19: Latest information for recruiters

• (27.03.20) Due to Coronavirus, the government is relaxing the rules on holiday leave. Workers will be able to carry over any unused statutory annual leave into the next two leave years. The government will amend the Working Time Regulations 1998 to reflect this. As a reminder, almost all workers are entitled to 28 days statutory annual holiday including bank holidays each year. Usually, the majority of the 28 days cannot be carried between leave years - this means a worker would lose their untaken holiday if they don't take it in the relevant leave year. The change to allow a carry-over for two years will ensure workers don’t lose their leave entitlements and gives flexibility to business.
  
  Read the government guidance for more information.on.

• (23.03.20) Update from our legal team: Coronavirus Bill, Furlough payments, DBS ID checks, Right to work checks, REC Audited Education/ CCS

• (23.03.20) The Coronavirus Bill and the government’s job retention proposals

• (18.03.20) Update from our legal team Coronavirus Bill, SSP, IR35 delay 

• 17.01.2022 – Changes to self-isolation requirement after testing positive for Covid-19

  From today, people who have tested positive for Covid-19 in England can leave isolation after five full days and following two negative lateral flow tests. In order to end self-isolation, you must complete ‘five full days’ of isolation (not counting the day you test positive) and receive two negative lateral flow tests on day five and day six.

  This is a change from the previous seven-day isolation rule and comes in response to calls from businesses who have been experiencing an alarming level of staff shortages due to positive tests and self-isolation. The government hopes this move will alleviate pressure on essential services and supply chains over the winter period.

  Read the government’s press release for more information.

• 06.01.2021 – Changes to self-isolation and testing rules

  There have been a couple of rule changes relating to the ongoing spread of the Omicron variant.

  In the UK, if you test positive on a lateral flow test and don’t display symptoms, there is no requirement to take a further PCR test to confirm the infection status. Individuals are advised to take the positive lateral flow test as confirmation and self-isolate for at least seven days, provided you receive a negative lateral flow test on the sixth and seventh day of self-isolation.

  There have also been changes to international travel rules. New arrivals will no longer be required to present a negative pre-departure test nor required to undertake a day two PCR test, if they are fully vaccinated. Fully vaccinated new arrivals can take a lateral flow test instead. Previous rules are still apply to non-vaccinated travellers meaning those individuals will require a pre-departure test, a day two PCR test and will have to quarantine until a negative result is present. The new measure comes into effect at 4am on 9 January and applies to England.

  Read the government’s press release for more information.

• 27.07.2021 – Daily contact testing to maintain essential services

A targeted daily contact testing programme is being rolled out for frontline workers employed in ‘critical sectors’ in England to ensure crucial and emergency services have a sufficient number of staff to operate. Through the new programme, individuals working in crucial, frontline services will be able to avoid self-isolating after being contacted by NHS Test & Trace if they meet required conditions, such as a negative test. Some 2,000 testing sites are set to open across England as part of the scheme. Along with food production, transport, police and fire services, the daily contact testing programme will also include those working in prisons, waste collection and defence. Eligible employers and employees will be contacted with guidance about the protocols to follow.

Read the Government press release for more information.

• 28.07.2021 – No test required for double vaccinated from 16 August

In early July, the Government announced that from 16 August, fully vaccinated people in England would be exempt from self-isolation when coming into contact with a positive Covid-19 case. Today (28 July), a further change to the self-isolation rules was announced, meaning anyone who is double vaccinated and not displaying coronavirus symptoms, will not be legally required to take a test to leave self-isolation.

The Government is still encouraging people to get tested in order to ensure that they are not carrying the virus, however from 16 August, the measures won’t be compulsory unless a person has coronavirus symptoms.

• (01.04.20) The Home Office and the Disclosure and Barring Service (DBS) have put temporary arrangements in place, to provide DBS checks and fast-track emergency checks of the Adults’ and Children’s Barred Lists free-of-charge. This will apply to healthcare and social care workers being recruited in connection with the provision of care and treatment of coronavirus in England and Wales, including some of those who have volunteered to help the NHS - find out more.
   

• (30.03.20) Disclosure Scotland have announced that they are no longer accepting paper applications as of today 
   

• (23.03.20) Update from our legal team: Coronavirus Bill, Furlough payments, DBS ID checks, Right to work checks, REC Audited Education/ CCS
   

• (23.03.20) Following significant pressure from REC and others, DBS have changed their advice on ID checks.

15.02.2022 - Northern Ireland restrictions lifted

The Health Minister for Northern Ireland has confirmed that all remaining Covid-19 restrictions in the country will be lifted following an order made on 15th Feb. This means that all remaining restrictions, such as requirements to wear face coverings in public places; for business owners to have measures in place to limit transmission of the virus; and for the use of Covid certification at nightclubs and large unseated indoor events, will no longer be legal requirements as per government regulations and will be set out in optional guidance instead. Whilst restrictions are being lifted now, the Northern Irish government has retained the right to reintroduce restrictions if needed at a later date. REC will make members aware of any further changes made across the UK.

24.01.2022 – Covid rule changes for Scotland and travel rule changes for England and Scotland

From 4am on 11 February, fully vaccinated travellers and children under the age of 18 will no longer be required to take a pre-departure test or a day two test. All new arrivals will still need to fill in passenger locator forms and adhere to face coverings rules for different airports. Non-vaccinated people will have to continue to follow the previous requirements of a pre-department test and a day two PCR test.

The changes apply to Scotland and England.

The Scottish government has announced further easing of the current Covid restrictions. From 31 January, the working from home guidance will be relaxed in favour of a hybrid system. Restrictions on large events and requirement for table service across the hospitality sector have already been lifted in the last few weeks.

For the latest information for covid rules in Scotland, please visit the Scottish government website.

17.12.2021 – Wales reintroduces certain Covid-19 restrictions

On 16 December, Wales’s First Minister, Mark Drakeford AM announced that certain Covid-19 restrictions will be reintroduced from 27 December in a bid to slow the spread of the Omicron variant.

Restrictions mean that nightclubs will have to close their doors, staff who can’t work from home will have to adhere to ‘2 metre’ social distancing and hospitality venues will have to bring back one-way systems and physical barriers.

For more information, read the government’s guidance.

15.12. 2021 New Restrictions for businesses and advice for people in Scotland 

On 14 December, Scotland’s First Minister, Nicola Sturgeon MSP imposed further restrictions to tackle the spread of the Omicron variant.

Certain businesses will now have to follow new guidance with stricter protective measures. For example, hospitality venues will be required to collect customers’ contact details again and retail businesses will need to install protective screens. Detailed guidance is due to be published shortly.

The Scottish Government has also urged people to cut down social contact as much as possible in the run up to and immediately after Christmas.

For the latest advice on coronavirus in Scotland, you can read the official guidance here.

• (24.03.20) Update from our legal team: Furloughed workers, Payments for the self-employed, Gender pay gap reporting

• 25.06.2021 - Another Holiday Pay and Furlough Employment Tribunal Judgment

  One of the big issues for recruiters in 2020 as they considered how and whether to use the then new Coronavirus Job Retention Scheme (CJRS) to furlough temporary workers, was whether holiday and holiday pay would accrue for those workers while they were furloughed.

  The REC lobbied extensively for the government to release guidance on holiday pay and furlough, and guidance was published in May 2020.  However, as it is not statutory guidance, we are now seeing how the issues are approached in Employment Tribunal (ET) claims.

  Last month we reported on the ET decision of Healy v Start People, a case brought by a temporary worker against an agency for holiday pay that the worker argued had accrued during a period of furlough. In that decision the ET ruled that the temporary worker did accrue holiday while furloughed. However, that judgment had little by way of analysis as to why it was found that there was an ongoing contract when the temporary worker was not working on an assignment. It was not clear to what extent the nature of her contract for services had been considered.

  We now have another judgment, handed down on 22 June 2021, which deals with a similar claim for holiday pay allegedly accrued during furlough. However, in contrast to the Healy case, the ET has dismissed the claim and found in favour of the agency. No holiday or holiday pay accrued while the temporary worker was on furlough.  

  Here's the case summary:

  Mr D Perkins v The Best Connection Group Limited Case No. 1602061/2020

  An ET ruled that a worker on a contract for services did not accrue holiday whilst on furlough.

  Mr D Perkins (‘the claimant’) brought a claim for unpaid holiday pay whilst on furlough from May to July 2020. He was seeking £261 in lost wages and £261 in accrued holiday pay. He had also claimed unfair dismissal, but that claim which was dismissed on the basis he was not an employee and he had not in any case been employed for two years, as required to bring an unfair dismissal claim.

  The case was therefore dealt with on the basis that the claimant was engaged by the agency as a worker on a contract for services. The Judge considered the facts and the respondent, Best Connection Group Limited's (TBCGL) argument which was that for the period that the claimant was on furlough and not working on an assignment, he was not a worker for the purposes of the Working Time Regulations 1998 (WTR) and therefore  did not accrue annual leave during that time. In addition, TBCGL engaged the claimant under a contract for services and the contract only existed when the claimant was on assignment with the client and not between assignments.  The TBCGL also referred to Government’s guidance which stated that:

  “Some agency workers on a contract for services may not be entitled to the accrual of holiday or to take holiday under the Working Time Regulations while on furlough because they are not workers or treated as workers under those regulations when between assignments or otherwise not working on assignments.  Contracts may nevertheless include holiday provisions which will continue to operate in the same way as they did prior to the furlough period.”

  The claimant admitted in his oral evidence that before furlough, when he was not working on assignment for TBCGL he did not accrue holiday with TBCGL.

  The Judge considered the terms and conditions signed by the claimant which clearly stated that “……. no contract shall exist between TBC and you between Assignments…….For the avoidance of doubt, these terms shall not give rise to a contract of employment between you and TBC.  You are engaged as a worker, not an employee, although TBC is required to make statutory deductions from your remuneration……. Subject to any statutory entitlement you will not receive payment from TBC or its clients for any time not spent on assignment whether in respect of holidays, illness or absence for any other reason.”

  After a detailed analysis of the facts, the WTR and case law on worker and employee status the Judge concluded that there was no contract between the parties when the claimant was not on assignment and there was no separate agreement confirming the claimant would accrue holiday when on furlough. In addition, the claimant was only a worker within the meaning of the WTR when working on an assignment.  The Judge also referred to the fact that the claimant was not allowed to work for the agency while on furlough, under his furlough agreement (and as is set out in the rules of the CJRS) and that 'by its fundamental nature the claimant therefore was not on assignment whilst on furlough'.

  It is important to bear in mind that the judgment is a first instance decision which means that other ETs, if presented with a similar case, could reach a different decision because the decision is not binding. Like any other decision, there is the possibility of the claimant appealing the decision. However, the analysis in this case, which draws out the specific nature of temporary workers working on contracts for services and the interaction with the holiday pay legislation and furlough provisions is compelling and, in our view, reflects more accurately how the law should apply to these types of claim.

  The CJRS is set to run till the end of September (unless any further extension is provided), we will see more ET claims and various decisions but please take further advice regarding any disputed or uncertainty regarding holiday pay.

• ​​​25.05.2021 - Agency worker wins furlough holiday pay case 
  
  Miss K Healy v Start People Limited 2502140-2020

An Employment Tribunal ruled that a worker on a contract for services accrued holiday whilst on Furlough.

Miss K Healy (‘the claimant’) made a claim against Start People Limited (SPL) for non-payment of holiday pay accrued from 25 March 2020 to 31 July 2020.

The Claimant was supplied by SPL in February 2020. When Government introduced the Coronavirus Job Retention Scheme (CJRS), the end client asked SPL to Furlough her which they did. SPL correctly paid her the accrued holiday pay for the 20 days she had worked since February 2020. However, she was not paid any accrued holiday pay while she was on furlough between 25 March and 31 July 2020.

The claimant said she became aware that she may have a claim for accrued holiday pay as her employment with SPL neared its end. SPL’s decision not to pay her for the accrued holiday whilst on Furlough was because they relied on an article from a law firm and Government’s guidance which states:

“Some agency workers on a contract for services may not be entitled to the accrual of holiday or to take holiday under the Working Time Regulations while on furlough because they are not workers or treated as workers under those regulations when between assignments or otherwise not working on assignments. Contracts may nevertheless include holiday provisions which will continue to operate in the same way as they did prior to the furlough period.”

Based on the above advice, SPL argued that the claimant’s contract did not state she would be paid holiday pay between assignments. However, the Judge disagreed and confirmed that furlough does not affect the terms of her contract and the claimant’s assignment at the end client did not end, as she was placed on furlough.

It is important to bear in mind that the judgment is a first instance decision which means that other employment tribunals, if presented with a similar case, could reach a different decision because the decision is not binding. In addition, the case could be appealed by SPL although we do not have confirmation that they will apply to the Employment Appeal Tribunal.

This case was decided on specifics facts where the Judge concluded that the agency worker’s assignment did not end when she was furloughed. Therefore, the provisions in the government holiday pay guidance which points to the fact that agency worker’s holiday may not accrue between assignments when workers are furloughed, was not relevant to this case.

The CJRS is set to run till the end of September (unless any further extension is provided), but since this decision is not binding, there may be limited action for agencies to take at this stage. For employment businesses that have agency workers who are still furloughed, they should look at whether those workers were furloughed along similar lines that indicate that their assignments with their clients are ongoing during the furlough period. Do take further advice regarding any disputed or uncertainty regarding holiday pay.

You can read the full judgment here.

• 26.01.2021 - Supreme court gives clarity on COVID insurance claims. The REC is pleased that the Supreme Court case has delivered some much-needed clarity in relation to business interruption coverage. The result means that many more businesses who were previously denied will now be able to make a claim on their insurance for the interruption caused by lockdown and regional restrictions. It also means that some pay-outs in respect of valid claims will be higher. According to the Association of British Insurers (ABI) claimants affected by the test case will be contacted by their insurer to discuss what the ruling means for their claim.
  
  On the 15 January, the UK Supreme Court made a judgment on an appeal by the Financial Conduct Authority (FCA) on behalf of business interruption insurance policyholders. The judgment follows an almost yearlong battle for many businesses who were forced to close their premises due to lockdown but were told by their insurance providers that they could not make a claim for business interruption.
  
  From the outbreak of the Coronavirus pandemic REC members who were ordered to close by government reported issues in receiving a pay out from their insurance providers. As demand halted and cash flow pressures mounted, many recruitment businesses found themselves at risk of insolvency as they waited for cash from their insurance providers.
  
  From the start of the pandemic the REC has been lobbying government and the insurance industry to take urgent action. In spring 2020 we wrote and met with the ABI to persuade their members to act responsibly and be flexible. We also wrote to government who have assured us that while they are urging the insurance industry to be flexible, it is only a request, and the insurers do not have to legally comply.
  
  The judgment will be welcomed by many in the recruitment industry, however, we do recognise that it is not a win all for. The Supreme Court test case was not intended to encompass all possible disputes, but to resolve some key contractual uncertainties and ‘causation’ issues to provide clarity for policyholders and insurers. Recruitment firms who have previously been refused the right to make a claim will still need to consider their own insurance policy against the judgement by the supreme courtt.
  
  The Supreme Court decision does highlight the challenges that many businesses have had to face during the past 8 months. While the vaccination program offers hope that economic activity will resume later in the year, further lock down restrictions and the end of government support schemes in spring, mean that many businesses will struggle to survive.
  
  The REC is calling on the Chancellor to not only extend but also enhance the Coronavirus Business Support package, before the Spring Budget. To find out more about the REC’s Pre-Budget submission response please contact policy@rec.uk.com.

• 31.07.20 - New law on redundancy pay: A new provision takes effect today that clarifies the calculation of redundancy pay and notice pay for employees who are made redundant while furloughed. It ensures that they receive pay based on what they would have been earning as full pay rather than at the furlough rate. Find out more here. The advice in our legal guide regarding redundancies remains as before and will help you understand your obligations as an employer.

• (23.03.20) Government advice on rent for commercial tenants

• 05.01.2022 - Permanent Digital Right to Work check from April 2022

  After considering the positive feedback on the adjusted right to work regime introduced since the pandemic, the Home Office (HO)reviewed specialist technology to support a permanent system of digital checks for candidates including UK & Irish nationals. On 27^th December 2021, HO announced that employers can use certified Identity Service Providers (IDSPs) to conduct digital identity checks from 6 April 2022. This is a new service and the cost of these services would be met by employers. The costs of the technology vary from as little as £1.45 per check to between £50 - £70 per check, depending upon the levels of service supplied by the provider. But there is a problem here because for EU nationals, the Employer’s Checking Service (ECS) is free and the ECS is not available to British and Irish nationals. REC’s Campaigns team will be vocal about the concern over costs and continue to push HO for an in-house free system like the ECS.

  The technology will allow candidates to upload images of their personal documents, to Identification Document Validation Technology (IDVT) provider instead of presenting physical documents to a prospective employer which reduces time and mitigates risk. In addition, the IDVT will remove human error in terms of identifying fraudulent documents or inaccuracies. For more details please see here.

  27.12.2021 - A permanent system of digital right to work (RTW) checks will be put into place from 6 April 2022.

  The Home Office has announced that a permanent system of digital right to work (RTW) checks will be put into place from 6 April 2022. Employers can use certified Identity Service Providers (IDSPs) to conduct digital identity checks on for many candidates who are not in scope to use the Home Office online services, including British and Irish citizens.  The relevant changes to legislation will take effect from 6 April 2022. See more details on the process and the costs for employers to use the service.

  See the REC’s press release.

• 26.08.2021 - Home office postpones return to in-person RTW checks
  
  Following the efforts of the REC and others, the Home Office has announced that the end of the adjusted RTW checks will be delayed once again until 5 April 2022. These checks were introduced originally in March 2020 as a response to the pandemic, and were due to end on 31 August 2021. Employers will be able to continue to do adjusted checks for all candidates until 5 April, but from 6 April will need to revert to checks in line with the Home Office's standard guidance. Additional information on the delay has been published by the Home Office. The decision to delay was influenced strongly by the REC’s letter on 25 August which made it clear that returning to face-to-face checks now would exacerbate the ongoing worker shortage in the UK labour market.

• 15.12.2021 - Vaccines received abroad now recognised on NHS Covid Pass for UK residents

  From 15 December, UK residents who received two doses of an approved vaccine can now use England’s NHS Covid Pass, a requirement to attend large events and certain venues under new rules. People who need to register their vaccination status with vaccines received abroad should book an appointment with one of the selected NHS vaccination centres to update their records.

  The news comes as the UK Coronavirus alert level increased from level 3 to level 4 based on advice from the UK Health Security Agency and in light of the new Omicron variant. Level 4 is defined by government as “a Covid-19 epidemic is in general circulation; transmission is high and direct Covid-19 pressure on healthcare services is widespread and substantial or rising”. The increase in the alert level does not automatically impose new restrictions.

  Following last week’s announcement, the government has also updated its working from home guidance.

• 23.11.2021 – the Scottish government includes negative lateral flow test results to vaccine passport rules

  In addition to Covid-19 certificates, from 6 December, people in Scotland will be able to present a negative lateral flow test as proof of vaccination status to enter venues and settings covered under the vaccine passport regime, such as nightclubs and large events. The First Minister also urged people to take a lateral flow test in advance of any social occasions to slow the spread of the virus.

  Despite some speculation, Nicola Sturgeon said that the extension of vaccine passports to cinemas and theatres are ‘not proportionate at this stage’. No further restrictions or social distancing measures were announced but people have been urged to work from home if they can.  

  You can read Scotland’s guidance to coronavirus to find out more.

• 17.09.2021 – Proof of full vaccination or a negative test to be required in Wales for the entertainment sector

The Welsh Government has introduced ‘Covid passes’ which will come into effect on 11 October. People in Wales will have to show their vaccination status or present a negative test before they can enter nightclubs and large events. This applies to anyone over the age of 18 who will be able to use an NHS Covid Pass app or a hardcopy letter.

Meanwhile in England, despite the previous confirmation from Vaccine Minister, the plan for ‘covid passports’ has been abandoned by the Prime Minister.

• 29.09.2021 – Vaccine passport update

England: England currently does not have plans to introduce vaccine certifications. However, the government is seeking views on the certification regime as part of Plan B of the COVID-19 Response: Autumn and Winter Plan 2021.

Read the consulation page for more information.

Wales: Wales is set to introduce the use of NHS Covid pass for the entertainment sector from 11 October. Similar to Scotland, the measure will be applied to anyone over 18 entering nightclubs and indoor events with more 500 people or outdoor events with more than 4,000 people. However, in Wales, a negative lateral flow test result taken within the last 48 hours will also be accepted for entry.

Read the government’s guidance on how to access NHS Covid Pass.

Vaccine passports for Scotland and NI

• 29.09.2021 – Vaccine passport update (Scotand and NI)

Scotland: From 1 October, ‘vaccine certification’ will be compulsory to enter ‘higher risk settings’ in Scotland such as nightclubs or large events. Different from what was initially announced, the Scottish government will introduce a 17-day grace period which will give businesses time to adopt to the new rules. But from 18 October businesses could face legal action for non-compliance. The scope of the scheme includes nightclubs, adult entertainment venues, indoor events with more than 500 people and outdoor events with more than 4,000 people. The scheme will require people over 18 to present digital or hardcopy evidence that they are fully vaccinated or medically exempt from vaccines. Negative tests will not be part of the scope. People can access the required vaccine certification through the NHS Scotland COVID-19 Status app or request a secure paper record of vaccination status with a QR code.

For more information, read the governmental guidance.

Northern Ireland: Despite calls for domestic vaccine passports, the Northern Ireland Executive is yet to make a final decision on the measure.

19.01.2022 – Plan B restrictions to be scrapped in England

The Prime Minister has today announced that Plan B restrictions in England will be removed by next week, meaning the mandatory use of ‘vaccine passports’, work from home guidance and the mandatory wearing of masks in all settings will come to an end.

From 19 January, people are no longer required to work from home and from 20 January, masks will no longer be required in classrooms. From 27 January, face coverings in all settings will be removed and businesses are not required to use covid certification. However, businesses can choose to continue the use of covid certification, while government encourages people to wear face coverings in crowded places for additional protection.

The Prime Minister aims to allow self-isolation regulations to expire on 24 March, but hopes to bring the date forward if data suggests it is safe to do so.  

The Prime Minister also urged people to get their booster jabs repeating that vaccination is a crucial measure in learning to live with the virus.

You can read  the full statement here.

13.12.21 - Acas guidance on  working from home

Today the new rule to ‘work from home if you can’ comes into place once again in England.

Workplace experts Acas advises employers and employees to be practical, flexible and sensitive to each other's situation when working from home because of the COVID-19 pandemic. Employers should keep everyone up to date and involved in decisions about working arrangements. Their website has lots of top tips and advice, but if you have any questions or aren’t sure of something, call the free Acas helpline for advice: 0300 123 1100.

13.12.21 - Office workers who can work from home should do so from Monday 13 December

Please see here for the latest government guidance, and below for the section on working from home:

"Office workers who can work from home should do so from Monday 13 December.

Anyone who cannot work from home should continue to go into work – for example, to access equipment necessary for their role or where their role must be completed in-person. In-person working will be necessary in some cases to continue the effective and accessible delivery of some public services and private industries.

If people need to continue to go into work, they should consider taking lateral flow tests regularly to manage their own risk and the risk to others.

Employers should consider whether home working is appropriate for workers facing mental or physical health difficulties, or those with a particularly challenging home working environment.”