Change is coming: are you prepared? This April, the new financial year brings significant changes to the employer landscape – namely, IR35 and the EU settlement scheme. Read on for the key facts and dates you need to know to ensure your business is ready.
IR35 applies to people who work for a business in a self-employed capacity but are essentially employees. Clamping down on this practice, changes to UK law will see HMRC recover unpaid tax and National Insurance from businesses if they believe employers are guilty of using self-employment loopholes to avoid giving employees necessary rights and benefits.
From 1 April 2021, companies that employ more than 50 employees or have a turnover of over £10.2 million will need to pay tax or National Insurance for workers or contractors who are essentially employees.
What’s the difference between an employee and a contractor?
Employees have a contract, paid holidays, PAYE, pensions, and a host of employment rights. Meanwhile, self-employed freelancers, workers, and contractors submit invoices, aren’t entitled to holiday or sick pay, and don’t share the same rights as employees.
EU settled status
Another critical change coming to the world of employment is the EU settled status. This applies to businesses with EU citizens working for them, as the individuals will have to reapply for residency status.
Post-Brexit, EU workers can only remain in the UK if they arrived before 31 December 2020 and have applied for residency via the EU Settlement Scheme.
Once individuals have settled status, they’re free to remain in the UK indefinitely and may be eligible to apply for citizenship.
Pre-settled status is available to those who have been in the UK for less than five years. It permits them to stay for five years, after which they can choose to apply for full settled status if they wish to remain here.
The good news is, there’s still time to apply for EU settled status if you or your employees haven’t done it yet.
The deadline for employees to apply for EU settled status is 30 June 2021. It’s free, and you can do it here: https://www.gov.uk/settled-status-eu-citizens-families/applying-for-settled-status
If you’re unsure whether your employees have a legal right to work in the UK post-Brexit, you can check here: https://www.gov.uk/government/publications/right-to-work-checklist
Can I still employ someone from outside the UK post-Brexit?
Free movement between the UK and the EU ended on 31 December 2020, and a new points-based immigration system is in place in the UK.
So, while you can still employ people from the EU to work in your business following Brexit, they must score the necessary points and have a relevant work permit or status, and you must have a sponsor licence from the Home Office.
Skilled workers who have a job offer from an approved employer sponsor must have a skill level equivalent of RQF3 (equivalent to A level), speak English, score 70 points on the system, and earn at least £25,600 (or the “going rate” for the job).
Employees earning lower salaries may still apply by “trading” points, or if their job is on the shortage occupation list.
You may also transfer an employee from another part of your international business to work in the UK via an “intra-company transfer”, but certain stipulations apply.
Need help preparing for IR35 or post-Brexit employment?
Hopefully, this summary will help you work through the changes coming up in 2021.
If you still need any advice or support, we’re here to help. Call us on 0330 555 1139 or drop us a line at email@example.com
You can also take a look at our webinar below, delivered for RIBA West London to share some insight on HR matters currently affecting their members. After many interminable months of furlough doom and gloom, it was great to talk about how businesses can prepare for the future:
- Brexit and work permits
- IR35 and the impact on contracts
- And more
Check out the recording below and ensure you plan for the upcoming change.
Our MD and experienced HR consultant, Olga Crosse, recently joined Fulcrum Care Consulting to discuss what your options are if your staff in care homes refuse to take the COVID-19 vaccine. Olga covers where you stand legally, what the best way to approach your staff is and a ‘last resort protocol’ if staff continuously refuse to take the vaccine. Read on to discover more.
Since the start of the Covid vaccine roll out we have been asked by a lot of our clients who operate in the Care Home space ‘what should we do with some staff who are refusing to have the vaccine, can we force them to?’.
According to Andrew Gregory of the Sunday Times it is expected that between 6% and 8% of the 1.5 million people who work in social care will refuse the vaccine. It has been reported that the National Care Association (NCA) is taking a legal opinion on whether or not care home staff can be ‘made’ to accept the vaccine as they are concerned that as many as 40% of care home staff may refuse the vaccine. On the plus side Nadra Ahmed Chairwoman of the NCA has said that between 50% and 60% of care home staff will definitely have the vaccine. So where does a care home provider stand legally?
Where do you stand legally with the Covid vaccine?
There is no simple answer to that, as a rule you cannot force anyone to accept the Covid vaccine if they do not want to and there is plenty of legislation that protects that right e.g. The Public Health (Control of Disease) Act 1984 specifically states that a member of the public should not be compelled to undergo any mandatory medical treatment, including vaccinations. An employer may fall foul of the Equalities Act 2010 if someone objects on religious or other grounds not to mention breaching Article 8 (right to family and a home life) of the Human Rights Act.
Is there anything else that you can do?
The Health & Safety at Work Act 1974 which states that employers have a duty of care to ensure a safe working environment might actually go some way in solving the Covid vaccine conundrum for care homes. Basically, employers have to ensure that the people they care for are not exposed to any risks. In that case, it could be deemed reasonable for a care home employer to insist that employees are vaccinated in a care home setting, in order to protect the residents that are being cared. Care Home employers could even make that a pre-condition of employment, which according to Lee Peart of CHP (Care Home Professional), Barchester Healthcare have done just that, and said that they won’t hire anyone who refuses to take vaccination on non-medical grounds. They have made it a condition of employment for any new hires and that is acceptable in that context, however as always we urge employers to proceed with caution before they do anything like that and always take HR and legal advice.
Consultation and communication with care home staff
Persuasion is always better than mandating anyone to do anything they don’t want to do. As with most things, it’s the fear of the unknown, and lack of communication that scares people the most. Therefore, we recommend care home owners (and employers in general) consult with their staff, listen to any concerns, act on those concerns and put measures in place to protect them to try and persuade nervous or dissenting employees to actually take the vaccine.
What should you do as a last resort?
As a last resort, if consultation and persuasion doesn’t work, care home employers could then take the nuclear step and specifically ‘instruct’ the employees to take the vaccine (as the vaccine is there to protect the residents and the staff, this could be seen as a reasonable management instruction) and any refusal to do so would be seen as ‘refusing a reasonable management instruction’ which is a disciplinary offence, which could potentially lead to an employee’s dismissal. We would urge caution before taking this route and try as much as possible to get consensus and agreement first. It is always better to persuade than to impose and legally a lot safer.
Other employers outside of the care home sector need to be very careful in insisting employees take the vaccine (Pimlico Plumbers springs to mind) and making it a condition of employment. Insisting might not be seen as reasonable in any other context and again might be in breach of a number of pieces of legislation, and you could be sued, so if you are a care home owner be sure to proceed with caution and to take HR and legal advice before you take any actions outlined above.
Fulcrum Care Ltd is a dedicated management support consultancy for care homes. Whatever the nature of your query, whether relating to help with a CQC inspection, improvement programmes, care compliance activities, best practice advice or management support, please get in touch for an initial discussion on finding the right solution for you and your care home.