Relevance: Publicly-funded schools (inc. 16-19 academies) and NMSS, but not FE/sixth form college corporations 

Draft legislation: The Restriction of Public Sector Exit Payments Regulations 2020

The Small Business, Enterprise and Employment Act 2015 (as amended by the Enterprise Act 2016) provides the power for HM Treasury to make regulations implementing a £95,000 cap on exit payments in the public sector. Regulations came into force on 4th November 2020.

Last updated: 4th November 2020

  Relevance: All settings 

The hourly rates of the national living wage and national minimum wage increased on 1st April 2020. The new and previous rates are as follows:

  Relevance: All settings 

The annual increases to the various statutory rates for 2020/21 are as follows:

  Relevance: All settings 

Legislation: The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018

In its Good Work Plan published in December 2018, the Government committed to a range of policy and legislative changes with the aim of ensuring access to “fair and decent” work and improving clarity for employers and workers. Some of these measures took effect from April 2020.

This particular change, to holiday reference periods, only impacts on workers with irregular hours (e.g. casual and seasonal workers). Previously, when determining a “week’s pay” for such a worker (to calculate how much to pay the worker for a week’s holiday), an average of the previous 12 weeks was taken, excluding any weeks in which no remuneration was payable and going back further as necessary to bring the total to 12.

The amount of holiday pay for a worker with no set hours would therefore fluctuate across the year in accordance with working patterns, resulting in opposing incentives for some employers and individuals as to when to take holiday. By increasing the reference period to 52 weeks instead of 12 it is intended that workers will have greater flexibility on when to take holiday in future.

Some schools, MATs and local authorities still pay casual and atypical workers holiday pay on an accrual basis (either as an hourly holiday pay ‘premium’ on top of normal pay or by accrual of hours’ holiday based on hours worked) so will not currently use reference periods to calculate holiday at all. In light of the Court of Appeal judgment in The Harpur Trust v Brazel, it is likely that employers will increasingly move away from such practices which are deemed to be incompatible with the calculation for holiday pay under the Employment Rights Act 1996. See more on the Harpur Trust ruling in our briefing note on the subject.

  Relevance: All settings 

Legislation: The Employment Rights (Miscellaneous Amendments) Regulations 2019 and the Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018

Prior to this change coming into force, employees were entitled to a written statement covering details of their employment terms and rights once they had worked for the same employer for more than one month. The statement had to be provided within 2 months of starting work. In practice many employers incorporate the written statement into a contract of employment which is provided before an employee commences work.

From April, certain changes came into effect:

1. Access to a written statement became a ‘day one’ right i.e. it must be provided by no later than the first day of work (it is still possible to provide certain information at a later stage though much of the core information must be in the ‘principal statement’);
2. Workers – and not just employees – are now entitled to a written statement;
3. Additional mandatory content is required in a written statement from day one (some of this content is entirely new, some is not new but needs to be provided from day one and not in later instalments):

• How long a job is expected to last, or the end date of a fixed-term contract;
• How much notice an employer and worker are required to give to terminate the agreement;
• Details of eligibility for sick leave and pay;
• Details of other types of paid leave e.g. maternity and paternity leave;
• The duration and conditions of any probationary period;
• All remuneration (not just pay) – contributions in cash or kind e.g. vouchers and lunch;
• Which specific days and times workers are required to work as well as if and how working hours/days may be varied;
• Training that the worker must complete (including any training for which the employer will not bear the cost) as well as training that the employer will provide.

What do I need to do following this change?

If you have not already done so, you need to identify whether your existing written statements of particulars or employment contracts are compliant with the changes. If you use templates supplied by your local authority, diocese or HR provider you should expect updated versions of those templates to be made available to you.

If you typically engage any workers (other than employees) to work for you, you need to be prepared to begin issuing statements of particulars for any new engagements from the implementation date. You may already be providing a certain amount of relevant information in a letter or short contract on commencement but will need to ascertain whether this is sufficient to meet the revised legal requirements.

A ‘worker’ for these purposes is someone who works under a contract (oral or written) whereby he/she undertakes to perform personally any work or services, e.g. casual workers. It does not include circumstances where the school/organisation is a client or customer of the individual (e.g. someone providing professional services on a self-employed basis).

Further guidance on these changes, as well as updated template contracts and a checklist for auditing existing templates are available for HR customers to access.

  Relevance: All settings 

Legislation: The National Insurance Contributions (Termination Awards and Sporting Testimonials) Act 2019

In the 2016 Budget it was announced that a change to the tax rules on termination payments would be introduced whereby employer NICs would become due on payments above £30,000 which are already subject to Income Tax. The measure was originally intended to come into force from 6th April 2018 but was later delayed until 2020.

From 6th April 2020 therefore, an employer is now required to pay NICs on any part of a termination payment that exceeds the £30,000 threshold. Government information states that it is anticipated that this will be collected in ‘real-time’ as part of the employer’s standard weekly or monthly payroll returns and remittances to HMRC. Employees will continue to benefit from an unlimited employee NICs exemption for termination payments.

It remains unusual for the ex gratia element of termination settlements in the education sector to exceed £30,000 so the impact in practice is not likely to be significant. If you are involved in negotiating settlements it will, however, be important to be aware of this change.

  Relevance: All settings 

Legislation: The Parental Bereavement (Leave and Pay) Act 2018; The Parental Bereavement Leave Regulations 2020; The Statutory Parental Bereavement Pay (General) Regulations 2020

The Parental Bereavement (Leave and Pay) Act 2018 implemented a manifesto commitment to introduce a new entitlement to parental bereavement leave. The secondary legislation required to bring the provisions into force was published in January 2020 and took effect from 6th April 2020.

Under the provisions, employed parents who lose a child under 18 or suffer a stillbirth from 24 weeks of pregnancy will receive up to 2 weeks’ leave (which can be taken in two separate blocks of one week if desired). Subject to meeting eligibility criteria (minimum of 26 weeks’ service and earnings test) they will also be able to claim parental bereavement pay at the statutory rate, which will mirror the rate for statutory paternity / shared parental pay.

Guidance on the new right is available to HR customers. Template forms and a letter will also be added shortly.

If you have not already done so, it will be worthwhile updating any special leave or compassionate leave policies in place to reflect the new right. Schools and colleges may also wish to consider whether they wish to enhance the right, for example by offering full pay for some or all of the period of leave (some compassionate leave policies may already provide for this).

HR customers can download an updated special leave example policy which incorporates this new right.

  Relevance: Employers with at least 250 staff on the snapshot date 

Public sector organisations within scope of gender pay gap reporting must publish their report by 30th March each year (for the private and voluntary sectors the report deadline is 4th April).

For more on gender pay gap reporting, see our Equality Law > Guidance and Information page.

Due to the Coronavirus outbreak, the Government Equalities Office (GEO) and the Equality and Human Rights Commission (EHRC) took the decision on 24th March 2020 to suspend enforcement of the gender pay gap deadlines for this reporting year (2019/20). This effectively means there will be no expectation on employers to report their data but they may, of course, still choose to do so.

  Relevance: All public sector bodies with more than 49 FTE employees 

Reports on facility time usage must usually be submitted by 31st July each year, covering the period from April to March. This year, however, the Cabinet Office has extended the reporting deadine to 30th September 2020 due to the coronavirus pandemic.

Quick Summary of Reporting Requirement:

The local authority is responsible for reporting in respect of its community and voluntary controlled schools and PRUs (but schools may have to provide information to the LA about local union representatives).

Subject to the minimum size requirement*, other public sector bodies in the education sector also have to report, including the governing bodies of voluntary aided and foundation schools, academy trusts, FE and HE institutions.

* Size requirement: employer must have had more than 49 FTE employees in at least 7 of the 12 months included in the reporting period (April to March) and at least one trade union representative during that time.

More detail on facility time reporting is available within the Trade Union Facility Time Reporting pages.

  Relevance: Public bodies with 250 or more staff (FE colleges and universities are out of scope) 

The next reporting deadline is 30th September 2020, covering the period from April 2019 to March 2020.

All bodies in scope are required to publish certain information annually on their progress towards meeting the public sector apprenticeship target (for a minimum of 2.3% apprenticeship starts per year).

Community and voluntary controlled schools are included in their local authority's target.

More information on the public sector targets and reporting requirement is available.

  Relevance: All settings 

Legislation: The Finance Act 2020 (received royal assent on 22nd July 2020)

Schools and colleges in the public sector are already well-versed in the changes to intermediaries legislation (usually referred to as IR35) which came into force in April 2017. This generated an extra £550 million in Income Tax and NI contributions in the first 12 months. These changes are being extended to medium and large organisations in other sectors and will have effect for contracts entered into on or after the implementation date or payments made in respect of services provided on or after the implementation date (originally due to be 6th April 2020 but now delayed by one year). There will also be some minor adjustments to the rules which will affect public sector employers.

Private Sector Changes

The rules are intended to ensure that an individual who works like an employee, but through their own limited company, pays broadly the same Income Tax and National Insurance contributions as other employees. The change to the rules shifts responsibility for operating IR35 from the individual’s personal service company to the organisation that the person is supplying their services to.

In the private sector there will be an exemption for small companies which can continue to apply the existing IR35 rules. The legislation lays out how this exemption is expected to operate but the definition of small company is in line with the existing statutory definition within the Companies Act 2006. Small companies will satisfy at least two of the following conditions:

• Annual turnover not more than £10.2m;
• Balance sheet total not more than £5.1m; and/or
• Number of employees not more than 50.

Undertakings which are unincorporated will be treated as ‘small’ if their turnover in the relevant financial year was not more than £10.2m. There are also rules around connected and associated companies.

Changes Affecting All Sectors

• Organisations will be required to provide a Status Determination Statement which will confirm the IR35 decision and the reasons for it. The organisation will be liable for Income Tax, NICs and apprenticeship levy until it provides a valid Statement to the individual.
• If the individual believes the IR35 decision to be incorrect, he/she may make representations to the organisation which then has 45 days to review the case and confirm the decision reached, issuing a new Statement if the decision is changed.
• HMRC will have the power to transfer Income Tax and NIC liability to another entity in the supply chain if it considers that the other person should have paid those liabilities.

The Government has also committed to improving the HMRC’s Checking Employment Status for Tax (CEST) tool.

Last updated: 1st September 2020

  Relevance: All settings 

Legislation: TBC

In July 2019 the Government published its response to consultation on preventing the misuse of confidentiality clauses in the workplace. This was undertaken chiefly as a response to certain cases where employers had used such clauses to prevent victims of harassment or discrimination from speaking out. As a result, the Government has committed to:

• legislating so that no provision in a confidentiality clause can prevent disclosures to the police, regulated health and care professionals and legal professionals;
• legislating so that limitations in confidentiality clauses are clearly set out in employment contracts and settlement agreements;
• producing guidance for solicitors and legal professionals responsible for drafting settlement agreements;
• legislating to enhance the independent legal advice received by individuals signing confidentiality clauses;
• enforcement measures for confidentiality clauses that do not comply with legal requirements in written statements of employment particulars and settlement agreements.

Legislation is expected as soon as “Parliamentary time allows”. Guidance has already been produced at the request of the government by the Equality and Human Rights Commission (October 2019) and ACAS (February 2020). We will revisit our own template contract and settlement wording once draft legislation is available to ensure compliance. We will also publish further advice closer to the implementation date once known.

Last updated: 8th April 2020

  Relevance: All settings 

Legislation: TBC

In July 2019, the Government published its response to consultation on extending redundancy protection for women and new parents.

Women on maternity leave (as well as those on adoption and shared parental leave) already have special protection in a redundancy situation, meaning that employers have an obligation to offer suitable alternative employment where it exists, in preference to others at risk of redundancy.

The Government has now committed to extending this protection as follows:

• Protection will apply from the point the employee informs the employer that she is pregnant (whether orally or in writing) and will extend until 6 months after the mother has returned to work;
• For those taking adoption leave, protection will also extend until 6 months after the return to work;
• A similar principle to adoption leave will apply for shared parental leave except that, in recognition of the differences between SPL and maternity leave, a different approach will be required (for example the period of protection will need to be proportionate to the amount of leave taken, bearing in mind that periods of SPL may be much shorter).

The Government has also committed to establishing a taskforce of employer and family representative groups to make recommendations on what improvements can be made to the information available to employers and families on pregnancy and maternity discrimination. It will also develop an action plan on what steps Government and other organisations can take to make it easier for pregnant women and new mothers to stay in work.

Last updated: 8th April 2020

  Relevance: All settings 

Legislation: TBC

The government is consulting on proposals to give employees who are carers a week of unpaid leave each year for the purpose of undertaking their caring responsibilities.

The consultation (closing on 3th August 2020) is seeking views on:

• how carers use existing employment rights
• who should be eligible to take the leave
• what the leave can be taken for
• how the leave would be available to take and the process for taking the leave
• the costs and benefits to employers and employees

There are no indications at present on the possible timetable for implementation.

Last updated: 23rd July 2020

  Relevance: All settings 

Legislation: TBC

The government has confirmed its response to the consultation on neonatal leave and pay conducted last year. As a result it intends to introduce a statutory leave entitlement for parents of babies in neonatal care (and pay, subject to qualifying conditions) in the forthcoming Employment Bill.

Last updated: 23rd July 2020

  Relevance: All settings 

Legislation: TBC

As part of the government’s 2018 Good Work Plan, the period of time required to break an employee’s continuous service is due to increase from one week to four weeks. The aim is to make it easier for employees who work intermittently over a period of time to access statutory rights.

Last updated: 23rd July 2020

  Relevance: All settings 

Legislation: TBC

As part of the Good Work Plan, workers who undertake irregular hours who would like more certainty will be able to request a more fixed working pattern from their employer after 26 weeks of service.

Last updated: 23rd July 2020

  Relevance: All settings 

Legislation: TBC

On 9th July, legislation was laid before Parliament to address the Supreme Court judgment in the widely reported case of P and Others v SSHD & SSJ. The court ruled in January last year that youth reprimands and warnings, as well as minor spent convictions, should not be disclosed in criminal records checks.

The legislation will amend the disclosure (filtering) rules that mandate which convictions and cautions must be disclosed for certain sensitive roles by removing disclosure for those roles of:

• youth reprimands, warnings and cautions; and
• all convictions where a person has more than one conviction.

Convictions which are for offences specified on a list of serious offences, which received a custodial sentence, or unspent convictions, will continue to be disclosed.

This will mean that, subject to Parliamentary approval, job applicants and employees will, in future, no longer have to declare the above and they will not show on DBS checks.

Last updated: 23rd July 2020