It’s April and time to get Worked Up!

With the new tax year upon us, it’s a time for new laws, a rudimentary annual update to statutory pay rates and usually the hope of warmer times ahead (well, seems we can’t always get all three).

This month sees the launch of the much heralded ‘Off Payroll Working Rules’ (the actual name for what everyone calls ‘IR35’). This is big news for many of you and has certainly been keeping us very busy of late.

The Covid restriction wind down also continues apace with the removal of shielding requirements, while some welcome relief has been brought to employers in respect of new guidance regarding right to work checks. We also revisit cases (this time in the Court of Appeal) relating to the dismissal of a practising Christian for his views regarding same-sex adoption.

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The Off Payroll Working Rules….not all bad news?

The end of shielding (mark 2)

Right to work checks

No luck in the Court of Appeal for Mr Page…

Any hopes for a second postponement of the Off Payroll Working Rules (we know a few of you out there were still holding out for such a wish) have sadly been well and truly dashed as the new rules came into effect on 6 April 2021.

The rules require medium and large private sector businesses to determine the tax status of any freelancers they engage via personal service/loan out companies and to pass this determination to the freelancer in the form of a status determination statement (SDS). The new rules then provide a statutory framework by which the freelancer can dispute the SDS, a process which we are already assisting clients to navigate. Perhaps most importantly, should the SDS determine the freelancer to be a ‘deemed employee’ for tax purposes, you must ensure that the appropriate tax and national insurance deductions are made from any fees paid to the freelancer.

It’s not all bad news though, as HMRC has committed to waiving penalties for the first 12 months of the new rules, unless there is evidence of deliberate non-compliance. Dare we say it but overall, it’s hard to dispute that the rules are reasonable and largely bring intermediary engagements in line with the risks that have always been prevalent when engaging freelancers directly. Some would say such consistency is long overdue.

If you haven’t already, check out our briefing note on actions to take to ensure compliance with the new rules.

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With effect from 1 April 2021, individuals who have been identified as clinically extremely vulnerable from Covid-19 are no longer being advised to shield.

Such individuals are still advised to take extra precautions to protect themselves but will no longer be entitled to Statutory Sick Pay on the basis of being advised to shield and are no longer being advised not to attend the workplace if they cannot work from home.

All individuals are currently still being advised to work from home so you should ensure that any clinically extremely vulnerable individuals continue to work from home if possible. In the event that it’s not possible for such an individual to work from home, you should discuss why they need to return to the workplace and the measures you have put in place to ensure the safety of the workplace. As such individuals may have protected characteristics, any refusal to return to the workplace should be handled carefully.

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The government has thankfully updated its guidance on right to work checks to confirm that right to work checks for EEA nationals will not change until after 30 June 2021.

This means that until 30 June 2021, employers can continue to rely on an EEA national’s passport or national identity card to evidence their right to work. The Government’s guidance makes clear that employers are not expected to differentiate between EEA nationals who arrived before 31 December 2020 (the end of the transition period) and those arriving from 1 January to 30 June 2021 (the grace period) and that there will be no mandatory requirement for retrospective checks to be undertaken on EEA nationals who were employed on or before 30 June 2021.

We are awaiting further guidance on the requirements for conducting right to work checks from 1 July 2021. That will presumably be when the fun begins…

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Page v Lord Chancellor and another [2021] EWCA Civ 254 (26 February 2021) and Page v NHS Trust Development Authority [2021] EWCA Civ 255 (26 February 2021)

In these cases, the Court of Appeal considered appeals from Mr Page, a practising Christian, who had been removed from his positions as a lay magistrate and non-executive director of an NHS Trust, following public statements about his views on same-sex adoption.

Mr Page was initially reprimanded for expressing his views on same-sex adoption during the course of an adoption application hearing. He subsequently appeared on BBC Breakfast News where he repeated his views, which led to his removal from the magistracy. Mr Page alleged that he had been victimised and that the second round of disciplinary proceedings (which led to his removal) were brought because he had complained that the first round was discriminatory. The Court of Appeal dismissed this appeal as it held that he had not been removed because he complained about the earlier disciplinary proceedings, but because he had publicly declared that he would determine same-sex adoption cases on the basis of his own preconceived beliefs rather than on the basis of the law or the evidence.

Mr Page had separately acted as a non-executive director of an NHS Trust and, following the media interest in Mr Page after his reprimand as a magistrate, the Trust instructed Mr Page to inform it of any further media interest and warned him that public expression of his views could undermine confidence that he would exercise his judgment in a way that was not affected by those personal views. However, Mr Page continued to give media interviews without prior notice to the Trust and, following the Trust’s discovery of this, he was suspended pending investigation and his term as a non-executive director was not renewed on its expiry. Mr Page sought to claim that he had been discriminated against on the basis of his beliefs but the Court of Appeal dismissed his appeal, finding that the Trust hadn’t taken action against Mr Page because of his beliefs but because of the way in which he had expressed these beliefs in the media without prior notice to the Trust.

A welcome decision that shows there are thankfully circumstances where individuals will have to accept some limitations on how they express their beliefs in public. Even so, the Court of Appeal made clear that each case will turn on its own facts and whether such limitations are justified will require a careful assessment of all of the circumstances of the case in order to strike a fair balance between the rights of the individual and the legitimate interests of the institution for which they work.

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