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HR & EMPLOYMENT LAW Jackie Le Poidevin, Editor-in-Chief, HR Adviser |
Discover the Key Changes to Employment Law that Took Effect on 1 January
This year will be an eventful one for anyone responsible for HR, with significant reforms to employment law due to take effect in April and later in 2024. We’ve already hit the ground running, though, with various smaller amendments having come into force on 1 January 2024. Here, we summarise the key changes.
From the start of this year, the supremacy of EU law over UK law ended following the passing of the Retained EU Law (Revocation and Reform) Act. This means that the Government can now dilute EU-derived worker protections if it chooses to do so.
Workers have, though, gained some rights through European Court of Justice (ECJ) decisions which the Government wishes to preserve. It has therefore been busy writing these protections into UK legislation before they disappeared.
These are the main changes which took effect on 1 January:
Holiday Entitlement and Pay
UK legislation now:
- Specifies that you must pay workers ‘normal’ pay for at least 4 weeks of their holiday entitlement.
- Defines normal pay and clarifies that it includes:
- Payments, including commission payments, that are intrinsically linked to the performance of tasks which a worker is contractually obliged to carry out.
- Payments relating to length of service, seniority or professional qualifications.
- Any other payments, such as overtime payments, which have been regularly paid to a worker in the 52 weeks before the holiday pay calculation date.
- States that workers are entitled to carry forward untaken leave into the next holiday year if you fail to tell them to use their leave before it’s lost.
- Clarifies that workers who can’t take some or all of their statutory holiday entitlement due to sickness absence can carry forward up to 20 days’ untaken leave. However, they must take this within 18 months of the end of the leave year in which it was accrued.
Comment
This is a way of codifying rights that the courts have said workers already have. However, it would be worth checking you are, in fact, compliant with these rules. To help you, you can read the Government’s new guidance on holiday entitlement and pay which it published at the start of the year (see: tinyurl.com/HRA-2024-holiday-rules).
Equality Act 2010
Some minor changes to the Act have taken effect which, again, are aimed at preventing various rights derived from ECJ case law from being lost.
Comment
There’s nothing you need to do for now in response to these changes but we’ll have to see what impact this has on claims in the future.
Working Time
The Working Time Regulations 1998 have been updated to clarify that, despite an ECJ ruling to the contrary, you don’t have to keep detailed records of each worker’s daily working hours.
Comment
It’s unlikely many employers changed their record-keeping practices anyway to comply with the ECJ’s ruling. Nevertheless, it’s helpful to have confirmation that there’s no extension to your obligations here. You do, however, still need to keep ‘adequate’ records to show compliance with the limits on working time, as has been the case since 1998. Those limits remain unchanged and include a maximum 48-hour working week (unless the individual has opted out) and minimum daily and weekly rest break requirements.
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HEALTH & SAFETY Emma Lampka, Editorial Board Member, Health & Safety Adviser and Risk Assessment & Compliance |
5 Ways You Can Help Ensure Safe Driving and Riding for Work
Driving for work is one of the most dangerous things your workers can do. According to the Department of Transport, in 2022 almost 29,000 people were seriously injured in accidents on the UK’s roads. 1,766 people were killed. As an employer, you must manage the risks to those employees who drive a vehicle or ride a motorcycle or bicycle as part of their work. We offer guidance to help you prevent injuries, ill health and fatalities.
The Management of Health and Safety at Work Regulations 1999 apply to both company and grey fleet vehicles i.e. vehicles owned and driven by an employee for business purposes. Vehicles used under cash allowance schemes are classed as grey fleet too.
Adopt these 5 Risk Controls
- Undertake a Risk Assessment
As part of the process, you should identify the hazards that can cause harm to the driver, rider, passengers, other road users and/or pedestrians. These might include:
- Roadworks, traffic and congestion
- Vehicle condition
- Fatigue and distraction
- Time pressures
- The weather
- Behaviour of other road users
- Lone workers such as delivery drivers or couriers
- Plan and Manage Journeys
First, consider whether the journey is necessary. For example, could the reason for the journey, such as a meeting, be conducted by video call or telephone rather than requiring travel.
When you are planning routes, choose the safest route for the type of vehicle. According to ROSPA, motorways are statistically the safest roads, accounting for only 5% road fatalities. Also be aware that minor roads can cause difficulties for larger vehicles.
Try to avoid restrictions, for example, overhead bridges. Tunnels or level crossings may also be dangerous for long vehicles.
Make sure your workers take measures to prevent fatigue. The Highway Code recommends that drivers and riders should take a 15-minute break every 2 hours.
Finally, try to avoid periods of peak traffic flow if you can and plan around seasonal variations, such as prior to bank holidays.
- Make Sure Drivers and Riders are Safe
You must assess your workers’ capabilities and competence. Apply these points to anyone who drives for work:
- Their experience, attitude, maturity, physical fitness and any language barriers.
- Their physical capabilities, such as their driving ability, age, sensory impairment, mental health and general health.
- Any driving or riding offences.
Also check that any driving licences, insurance, and MOTs are valid and up to date.
It is important to make drivers and riders familiar with of your company policy on work-related road safety. You could use:
- Written instructions and guidance
- Drivers’ handbooks
- Training sessions
- Induction training
- Group meetings, including toolbox talks.
- Look After Your Workers’ Health
Make sure your workers are fit to drive and have any medical certificates they need by law, such as for diabetes. They must satisfy eyesight and other health requirements of the Highway Code and DVLA. Encourage them to report any health concerns to you and they should check with their GP if they are unsure whether any medicines they take could impair their judgement.
- Make Sure Vehicles Used to Drive or Ride are Safe
Check that vehicles are safe to go on the road by making sure that:
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- Workers carry out and record daily vehicle checks and take any actions needed.
- Planned and preventive maintenance is carried out in accordance with manufacturers’ recommendations. An MOT certificate only covers basic defects and does not guarantee that a vehicle is safe.
- Workers inspect tyres and windscreen wipers regularly and are replaced when necessary.
- You have procedures for reporting defects.
- Defects are remedied
- Privately owned vehicles used for work purposes are safe. Workers must do their own checks on the vehicles, have them serviced, have insurance and a valid MOT.
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PAYROLL Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
Understand the New Guidelines for Compliance for Off-payroll Working
HMRC recently published new Guidelines for Compliance for off-payroll working. These aim to help engagers to operate the rules correctly. They set out practical steps for those engaging workers supplying their services through an intermediary, such as a personal service company, to follow. The Guidelines are designed to be used alongside existing off-payroll working rules, rather than in isolation.
The Nature of the Off-payroll Working Rules
The off-payroll working rules bite where a medium or large private sector organisation or a public sector body takes on a worker who supplies their services through an intermediary, such as a personal service company.
The engager must undertake a status determination (which can be done using HMRC’s Check Employment Status for Tax tool) to ascertain whether the worker would be an employee of the engager if the worker provided their services directly, rather than through their personal service company.
Where the worker would be an employee if engaged directly, the fee payer (which may be the engager or a third party) must deduct tax and National Insurance from payments made to the worker’s intermediary.
Small private sector organisations do not need to consider the off-payroll working rules. Instead, the worker’s personal service company must determine whether the engagement falls with the scope of the IR35 regime.
What You Need to Know
The Guidelines for Compliance start by stating their purpose and their scope, and explain how they should be used.
After setting out the background to the rules and a glossary of terms, the Guidelines contain useful information on training staff to ensure that the organisation meets its obligations in relation to the off-payroll working rules, setting out details of what the training should cover and how it can be delivered, together with examples of effective training.
The Guidelines also cover:
- Record keeping
- Considering the requirements of a new role
- Considering your off-payroll working population
- What to do if off-payroll workers are missed
- Contracted out services
- Making status determinations
- Client-led disagreement process
- Operating PAYE
- Outsourcing off-payroll working responsibilities
- Internal audit and periodic reviews, and
- Correcting errors, guidance and the legislation.
The Guidelines for Compliance on off-payroll working can be found on the Gov.uk website here.
Pausing a Settlement
Where an employer has made a mistake in applying the off-payroll working rules, they may become liable for the tax and National Insurance that should have been deducted from payments made to the worker’s intermediary.
As announced at the time of the 2023 Autumn Statement, from April 2024, HMRC will be able to take account of tax and National Insurance that the worker or their intermediary have already paid in working out the amount that it owed.
Where a compliance check has been carried out and a settlement has been reached, it may be possible for the settlement to be paused to take advantage of the change in the rules.
HMRC will only consider pausing a settlement if the organisation has acknowledged in writing an error in applying the off-payroll working rules and the gross liability, including any penalty has been agreed. In addition, the organisation must have provided HMRC with sufficient information to allow them to determine the amount of the set off, including the name and company registration number of the worker’s personal service company and the worker’s National Insurance number.
Where the condition are met, HMRC will ask the organisation if they wish to pause the settlement. Where this option is taken, HMRC advise that a payment is made on account to stop interest building up.