| HR & EMPLOYMENT LAW
Jackie Le Poidevin, Editor-in-Chief, HR Adviser |
Keep Track of the Latest Right-to-work Developments
In our Ask the Experts Update issued on 4 February, I suggested that the Covid adjusted procedure for carrying out right-to-work checks might be extended yet again. The Home Office has now pushed the procedure’s end date back from 5 April to 30 September. It has also announced some visa concessions for Ukrainian nationals who are already in the UK and unable to return home due to Russia’s invasion of their country. Read on to find out more about both these developments.
Right-to-work Checks
Since the pandemic’s outbreak, employers have been permitted to carry out right-to-work checks by video call. This concession was due to end early next month, with a new digital checking system taking its place from 6 April. However, to give employers time to get used to this new system, the government has now extended the Covid adjusted process until 30 September.
Until the new cut-off date, job applicants who are British or Irish nationals can continue to send you scans or photos of their identity documents. You must then ask them to hold up the original documents on a video call, so you can check them against the copies. Finally, you must mark the copies with their printed name, their signature and the wording: ‘Adjusted check undertaken on [date] due to Covid-19’.
New Digital Checks
From 6 April, you can choose to check British and Irish passports digitally using the government’s new Identification Document Validation Technology (IDVT). This is what we know so far about the process:
- You will need to use a certified provider (a so-called Identity Service Provider or IDSP), which will carry out the check on your behalf.
- You will have to pay a fee to the provider – the amount hasn’t yet been decided fees of up to £70 per check have been suggested.
- IDVT can only be used to check valid passports, not birth certificates or other forms of ID.
- The job applicant will be able to upload an image of their passport for the IDSP to check. However, you will still need to confirm that the person presenting themselves for work is the person who was subject to the check (either when you see them in person or via a video call).
This process is optional. To avoid a fee, you can carry out a ‘normal’ manual check of the person’s physical documents or, until 30 September only, use the Covid adjusted process. From 1 October, you must carry out a manual check or use an IDSP.
There’s a separate online checking service for job applicants who are not British or Irish, which you must use from 6 April. Checking the person’s paper documents will no longer be a valid way to confirm their right to work. I gave details of this in the 4 February email update.
Ukrainians’ Right to Remain in the UK
Ukrainians who were in the UK by 24 February can now temporarily extend their existing visa or switch onto a different visa route. Under the changes, those who are:
- Skilled workers can extend their leave to remain in the UK if their visa is about to expire.
- Visitors can apply to work under the points-based immigration system or for a family visa (if they meet the visa requirements) without having to leave the UK.
- Seasonal workers, HGV drivers or pork butchers can have their temporary visa extended to 31 December 2022.
If you have Ukrainian nationals working for you here in the UK, British staff working in Ukraine or employees with Ukrainian family members, you can refer them to the government’s guidance here.
| HEALTH & SAFETY
Michael Ellerby, Editorial Board Member, Health & Safety Adviser and Risk Assessment & Compliance |
Discover Why COSHH is Just as Relevant to Smaller Businesses
The word ‘COSHH’ can cause disquiet in many level–headed business folk. When questioned, many smaller companies would claim: ‘We don’t have any chemicals’. Although the declaration may be given in good faith, it is rarely true. Some believe that this refers to chemicals associated with industrial processes. In reality, few workplaces do not have any hazardous substances. Employers may overlook, or fail to consider, the hazards associated with some seemingly innocuous substances, particularly those with which they are very familiar.
How to Identify Your Hazardous Substances
A useful way to avoid this oversight is to draw up a list (create an inventory) of all of the substances that are stored, used or generated in the workplace. The inventory must be comprehensive and should include: cleaning and premises maintenance materials, drain cleaning chemicals, waste and by-products (such as wood dust), etc.
Which Substances are Harmful?
Once you have the list, take a close look at what’s on it and determine whether any of the substances on the inventory are hazardous to health. This includes substances that are labelled as hazardous (such as toxic, corrosive, etc.) as well as all those identified as hazardous on the safety data sheet.
Safety Data Sheets
These may be obtained from the manufacturer or supplier of the substance. They are useful for determining if a substance is hazardous. They must be made available to employees who are exposed to hazardous substances.
Simplify Your Task and Save Time
Your COSHH assessment can be simplified, in many cases, by reducing the number of substances. Businesses should look critically at their inventory and consider two basic questions:
- Do I really need to use this substance at all (avoidance of the hazard)?
- If I need this substance, is there a safer alternative available (reduction of the severity of the hazard, such as a less concentrated cleaning chemical)?
For small businesses, it is often prudent to combine risk assessments to reduce paper work. It is possible to create an ‘Office Risk Assessment’ that deals with all of the general risk assessment issues, COSHH issues and fire safety issues in one simple assessment. Although there are several pieces of legislation which require the employer to carry out a suitable and sufficient assessment of the risks to employers and/or others, there is no requirement for these assessments to be carried out separately. It is important, however, that risk assessments cover all relevant areas in sufficient depth and detail.
- List and review the substances present on site.
- Assess the hazards associated with them.
- Reduce the number of hazardous substances.
- Replace hazardous substances with safe (or at least safer) alternatives.
- Assess the risk from the use of the reduced inventory of substances.
- Implement and enforce appropriate control measures.
| PAYROLL
Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
Pimlico Plumbers: How Latest Ruling Affects Paid Annual Leave
Workers are entitled to 5.6 weeks’ annual leave each year, comprising 4 weeks’ due under the European Working Time Directive and a further 1.6 weeks under UK law. By contrast, self-employed contractors are not entitled to paid annual leave. However, as the recent decision in Gary Smith v Pimlico Plumbers Limited highlighted, treating someone as a self-employed contractor when they are really a worker, may land their employer with a very large bill.
The Pimlico Plumbers Case
In the most recent instalment of the long-running case of Gary Smith v Pimlico Plumbers Limited, the Court of Appeal overturned the decision of the Employment Appeal Tribunal, ruling that Smith is entitled to be paid for leave.
Previously, the Supreme Court confirmed (in Pimlico Plumbers Ltd & Mullins v Smith [2018] UKSC 29) that Smith was a ‘worker’ rather than a self-employed contractor. This paved the way for further claims based on his confirmed status of ‘worker’ and the entitlements that accompany ‘worker’ status.
The Facts
Smith worked for Pimlico Plumbers from 25 August 2005 until May 2011. At the start of the engagement there was an agreement between the parties which was described as a contract of employment and which described Smith as an ‘employee’. Later, and for the rest of the engagement, Pimlico Plumbers maintained that Smith was a self-employed contractor who had no entitlement to paid leave. From time to time Smith took periods of leave, but these were unpaid.
After the Supreme Court confirmed Smith’s status as a worker, the case returned to the Employment Appeal Tribunal. The Tribunal rejected Smith’s claim that the decision in King v Sash Window Workshop allowed him to bring a claim, on the termination of his employment, in respect of all unpaid leave accrued throughout his engagement with Pimlico Plumbers, both taken and untaken. The Employment Tribunal also held that his claim was not presented in time.
Smith appealed to the Court of Appeal.
Consequences of the Decision
If the employer cannot do this, the right to the paid annual leave does not lapse, but is instead carried over until the termination of the contract, at which point the worker is entitled to be paid for the untaken leave.
Smith was unable to exercise his right as a worker to take paid annual leave because his worker did not grant him any paid leave. Unpaid leave does not count as leave for the purposes of the European Working Time Directive.
Consequently, Smith is entitled to be paid for leave during the duration of his engagement.
The Implications for You
The impact of this decision is far reaching both for the workers in the gig economy and those engaging them. To minimise the likelihood of a large bill for unpaid leave:
- Review status decisions to ensure that all contractors who are being treated as being self-employed are, in fact, self-employed, and do not fall within the definition of a worker.
- Ensure that all workers are aware of the entitlement to paid annual leave.
- Ensure that all workers are aware of the rules for taking holiday, and the consequences for not taking holiday.
- Ensure all workers have the opportunity to take the paid leave to which they are entitled.