HR & EMPLOYMENT LAW

Jackie le Poidevin, Editor-in-Chief, HR Adviser
Email: hr@agorabusiness.co.uk
HR Adviser Online Resource Centre

Discover Which Employees You Can Now Bring Back to the Office

The Government recently updated its Covid guidance for offices and contact centres. Although the advice is still that employees should work from home if they can, this is no longer a legal requirement. There are also some limited situations in which you can bring home workers back to the office for their own protection. Here, we look at what the new guidance says and how much scope there is for staff to return to office-type workplaces.  

What Does the Guidance Say?

Office workers are still being advised to work from home if possible. This advice will remain in force until at least Step 4 of the Government’s roadmap, which will commence on 21 June at the earliest.

However, the updated guidance says 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. This is more detailed than the guidance which temporarily applied last Autumn, which said that if employees couldn’t work ‘effectively’ from home, they could return to the office.

What Can We Now Do?

Between 6 January and 29 March 2021 (and prior to that in the old Tier 4 areas), individuals were only permitted to leave home if they had a reasonable excuse, including if this was ‘reasonably necessary… for the purposes of work’. This restriction has now been lifted, so it’s no longer a criminal offence for someone to go to the office even if they can do their job from home.

However, given that the advice remains to work from home if possible, it would be very risky to require your remote workers to return to the workplace. If they refused and you dismissed them or they resigned, they could successfully claim unfair dismissal.

However, if an employee wants to return to the office, you can now permit this in some situations. These would include if the employee:

  • Has mental health problems caused by working from home – perhaps if they live on their own and struggle with the isolation, despite your efforts to keep in touch with them and help them feel connected to their colleagues.
  • Has a disability or musculoskeletal disorder and needs to use specialist or ergonomic equipment that’s available at your workplace. However, the guidance says you should first take every possible step to enable the employee to work from home, such as by providing suitable IT and equipment.
  • Has a ‘particularly’ challenging working environment at home. This may include:

–  Employees who are being disturbed by pre-school children or other household members.

– Those in cramped or shared accommodation who don’t have the space for a proper workstation.

– Employees suffering from domestic abuse.

How You Can Keep Such Individuals Safe

If you bring some staff back for any of the above reasons, the guidance says you must first consult them and ensure the workplace is safe. You should therefore:

  • Assess how many people you can safely accommodate while following the social distancing guidelines. If necessary, some of these employees may still need to work from home for some of the time.
  • Keep track of who is coming in and when to avoid breaching the social distancing rules.
  • Advise the employees to avoid travelling on public transport if possible, especially at peak times.
  • Follow the Government’s guidelines on cleaning, hygiene and ventilation.

 

PAYROLL

Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser
Email: pab@agorabusiness.co.uk
Pay & Benefits Adviser Online Resource Centre

Exemption for Coronavirus Tests Extended   

A time-limited exemption was introduced in December last year to prevent a tax liability from arising where an employer provides an employee with a Coronavirus antigen test. As announced at the time of the March Budget, the exemption is being widened to cover the situation where an employer reimburses an employee for the cost of a Coronavirus antigen test. It is also be extended so that it continues to apply for the 2021/22 tax year.

The Original Exemption for Employer-provided Tests

Regulations (the Income Tax (Exemption of Minor Benefits) (Coronavirus) Regulations 2020 (SI 2020/1293) were introduced in December 2020 to remove the liability to income tax that would otherwise arise where an employee is provided with a Coronavirus test by or on behalf of their employer. The exemption applies only to antigen tests. For the purposes of the regulations, a ‘coronavirus test’ is defined as ‘a test which detects the presence of a viral antigen or viral ribonucleic acid (RNA) specific to severe acute respiratory syndrome coronavirus 2 (SARS- CoV-2)’.

As originally introduced, the statutory exemption applied to tests provided in the period from 8 December 2020 to 5 April 2021. Where tests were provided prior to 8 December 2020, HMRC will exercise their discretion and refrain from collecting any income tax on the provision of such a test.

Extension Until 5 April 2022

At the time of the 2021 Budget, it was announced that the existing exemption would be extended such that it would continue to apply until 5 April 2022, covering tests provided in the 2021/22 tax year.

Reimbursed Expenditure

The original statutory exemption for Coronavirus antigen tests only applied to tests that were provided by or on behalf of the employer. It did not apply where the employee met the cost of the test initially and was subsequently reimbursed by the employer.

However, as announced at the time of the 2021 Budget, the exemption is to be widened so that it also applies where an employer reimburses an employee for the cost of a Coronavirus antigen test. The exemption will apply for the 2021/22 tax year, and also retrospectively for 2020/21.

National Insurance Disregard

Separate provisions ensure that no liability to Class 1 National Insurance contributions arises where an employee reimburses an employee for the cost of a Coronavirus antigen test. Likewise, no Class 1A National Insurance liability arises in respect of employer-provided antigen tests.

No Need to Include on the P11D or Operate PAYE

The introduction of the exemption means that there is no need to include employer-provided antigen tests on employees’ P11Ds for 2020/21, or to operate PAYE or National Insurance when reimbursing an employee for the cost of a Coronavirus antigen test.

Antibody Tests

The temporary exemption applies only to antigen tests (which detect whether someone currently has Coronavirus). It does not apply antibody tests, which test whether someone has antibodies, either because they have had Coronavirus or because they have had a vaccine.

Where antibody tests are provided, no tax charge will arise if the cost is £50 or less and the conditions of the trivial benefits exemption are met. Otherwise, the provision of an antigen test will constitute a taxable benefit.

If an employer reimburses an employee for the cost of a Coronavirus antibody test, the amount reimbursed should be included in gross pay for both PAYE and National Insurance purposes.

 

HEALTH & SAFETY

Paul Smith, Editor-in-Chief, Health & Safety Adviser
Email: hsadviser@agorabusiness.co.uk
Health & Safety Adviser Online Resource Centre
View Paul’s COVID-Secure Risk Assessment video here.

Covid-secure: Home Tests Give Employers New Zero-cost Option

On 9 April, the Government made available free Covid test kits that can be claimed by any employee, or indeed, household in England. These lateral flow tests could really help reduce Covid  spread by people who have the virus but don’t realise it (because they show no symptoms). Here we look at how encouraging your employees to take up the home test offer could add an extra weapon to your Covid-secure armoury – without it costing you a penny.

In an earlier bulletin, we reported that Health Secretary, Matt Hancock, was encouraging employers to offer Covid testing to workers and offering free tests to firms of all sizes.

However, many smaller organisations were put off by what was required to set up testing in the workplace. The hurdles included having the right premises, trained staff and suitable PPE, as well as the need to set up bullet-proof record-keeping and reporting systems. This left only three options: paying private providers, providing kits for self-testing or asking employees to use their nearest community test facility.

Using Free Testing Kits is Simple

Now that has changed as free kits are available to everyone. You can’t, of course, insist on their use, but encouraging employees to self-test at the recommended frequency of twice per week could make a major contribution to reducing the risk of infection in your workplace.

We tried out what was on offer as soon as it became available at the end of last week, and this is what we found:

  • We half-expected the website to crash under the weight of applications, but it didn’t.
  • We thought it might be difficult to set up an account and register, but it took less than 5 minutes.
  • We thought opting for home delivery could trigger delays, but again our fears were groundless: the first pack, containing everything needed for more than 3 weeks’ tests, rattled through the letterbox the very next day.

 

Encourage Your Workers to Self-test

So, we think that encouraging staff to self-test is a good idea: not only does it have no resource implications for you, it also sends a message to employees that you expect them to play their part in supporting your overall Covid-secure approach. Doing this will inevitably prompt questions from not only individual employees but also their managers and supervisors, so here are the essential facts on self-testing you can use to brief them:

  • You can order home test kits here.
  • Setting up an account is simple and only takes a few minutes. Very little information is required although you do need to give a phone number, email address and (if opting for home delivery) a postal address. You don’t need to scan in photo ID or have a government Gateway account.
  • Anyone who has symptoms should not take these tests: they must self-isolate and book a ‘gold standard’ PCR test through NHS Test and Trace, as before.
  • The tests are convenient: you don’t need to leave home to get a kit, to do the test or to notify the result.
  • The test involves taking a sample from your throat and nose, using a swab. You get a result within 30 minutes.
  • The tests are easy but they do require attention to detail. It is essential to follow to the letter the instructions supplied and it is worth watching the explanatory video before you start. You will also need to have to hand some simple household items (tissues, mirror, sanitiser) that don’t come with the kit.
  • The kits do not need to be kept under special conditions – in fact, they should not be refrigerated, although, like anything medical, they must be kept out of children’s reach.
  • Once you have taken the test, you should notify the result either online (you can scan the unique test QR code with your phone) or use the 119-phone service (0300 303 2713 in Scotland).
  • If you tested negative, no further action is needed, other than to do the next test in a few days’ time.
  • If you tested positive, you should self-isolate along with members of your household/bubble. Book a PCR test as soon as possible, which will either confirm or override the home test result.
  • Don’t come to work unless you have had a negative test.
  • Use the website to order follow on test kits as and when you need them.

PS: we couldn’t help noticing that the kits are made in China: no need to contact us if you think that’s ironic!