Top 10 HR questions asked in April 2021: Vaccination and IR35

There is a question of whether your employers can require or command you to take a coronavirus vaccination?

The human resource departments are asking about the effects on their workplaces, as the vaccination within the UK is extending for the younger people groups to take them.

On 6 April 2021 reforms to the “IR35 rules” on off-payroll working come into place in the private sector. Last month a question on what employers need to do to carry out and comply with the new rules was popular.

The top 10 HR questions in April 2021:

1. Employees are asking whether an employer can ask/ require them to have a coronavirus vaccine?

• It is an employer responsibility and duty to make sure the health and safety of their employees within the workplace.
• Following that an employer asking their employees to have the COVID -19 vaccine against coronavirus to decrease the chances/risks to the employee’s wellbeing and health. This is more likely a reasonable approach.
• Therefore, employers can encourage their employees to have the vaccine. However, the vaccine may not be available for them to have as they need to be eligible under the national programme and when they are they will be contacted.
• If an employee does not want to take the vaccination or they do not agree with it there is not much that the employer can do. Employers can raise that there will be some disciplinary actions towards any employees not taking the vaccine. Although it may be unlikely that they would be able to use it on health safety grounds. This can change over time.
• Employers must have the knowledge that some employees may have a medical reason for not taking the vaccine.

2. IR35, what is it?

• IR35 is also known as off-payroll rules.
• IR35 is produced to evaluate if a contractor is what they say they are (a genuine contractor) and not an employee disguised for the intention of paying taxes.
• IR35 is associated with individuals like consultants, contractors or freelancers to contribute/supply their services to companies with an intermediary.
• A contractor that works with their limited company benefits a level of tax efficiency.
• They normally do not receive employee benefits such as, sick and holiday pay and they have more flexibility and control over their work times etc.

3. Following Brexit, employers are asking how they should conduct right to work checks in the UK for European nationals?

• The employer must ensure to continue to conduct the rights to work check for every employee before hiring them.
• Until 30th June 2021 employers can carry on using the European Economic and Swiss passport and the national identity card for evidence of a person to check their right to work.
• Another way of checking a person's right to work is via online checking services, this is to verify that an applicant has settled or pre-settled status.
• Following the date 30th, June 2021 applicants do not have to agree with their status being shared through the online checking services. Alternatively, they can present their national card and passport for evidence.

4. Under the IR35 rules who are the individuals, a company needs to assess?

• As discussed in question two IR35 rules IR35 is also known as off-payroll rules. IR35 is associated with individuals like consultants, contractors or freelancers to contribute/supply their services to companies with an intermediary.
• An intermediary can also be partnerships or service companies that are managed. Also, very unusual individuals.
• A personal service company (PSC) is normally a limited company and they have single directors who are also the ones who are engaged.

5. Which companies are responsible for applying the IR35 rules from 6 April 2021?

• From 6th April 2021 under the IR35 rules companies that are medium - and, large-sized non-public companies will no longer be covered by the IR35 rules.
• Neither will small private- sector companies will also not be covered under the IR35 rules.

6. The employment law, what impact/ effects will Brexit have on it?

• It is not likely that the UK employment law will have an impact on it after leaving the EU, even though the UK employment law is obtained from the EU law.
• On 31st December 2020 at the end of the Brexit transition leaving the EU law was transformed into the domestic UK law.
• The decision to amending, retaining or repealing domestic legislation will be up to the Parliament.
• Lots of the domestic laws have been obtained from the EU laws and determined by the European Court of Justice 2018 and their decisions.

7. In the public sector is £95.000 a limit on exit payments in place?

• On 4th November 2020, the £95,000 limit in exit payments for the public sector had come into place.
• It was announced by the Government on 12th February 2021 about the removal of the cap/ limit immediately as it was acknowledged that there may be some "unintended consequences".
• Guidance is available for employers and individuals where the cap has impacted them and its revocation by the government.
• It is stated within the guidance that: "Employers are encouraged to pay to any former employees to whom the cap was applied the additional sums that would have [been] paid but for the cap."
• Within the Regulations is it written which public-sector companies cover the cap/ limit. These are the local governments, fire authorities, schools that are maintained; police departments; NHS; civil services; and academy school.
• For Scotland, there is a separate £95,000 limit put into place for exit payments.

8. For making sure compliance with IR35 rules is employing contractors on fixed-term contracts a solution?

• When a company hires a contractor with fixed-term contracts instead of intermediary contracts taking out of the IR35 rules. However, may not always be a reasonable solution for the people included.
• Could lead the companies to have negative participation in the skills for contractors as they will not all be ready to take on a fixed-term contract for employment.
• When a contractor agrees to a fixed-term employment contract, they will be authorised to employment rights, like pension rights and holiday pay.

9. When an employee is ill at a time is it permissible for an employer to discontinue the contract for that employee?

• Not being able to work due to health reasons is a fair to dismiss under s.98 of the Employment Rights Act 1996.
• Employers are to show that the illness is long-term in which they are treating for a reasonable dismissal.
• The employers that are looking to dismiss an employee that has long-term illness, should look into it properly in other words, have an investigation with things regarding when the employees will be coming back to work. Preferably a reasonable time.
• Employers must ensure to ask for medical evidence to back the long-term illness. Taking the investigation further by having a consultation with the employees.

10. Does a company require to present a status determination statement to all the contracts it connects with, under the IR35 rules?

• 6th April when the IR35 rule was put into place it is necessary for companies that are within the scope of the rules to examine the employment status of contracts through intermediary services.
• Clients are needed to issue a status determination statement to the contracts it has included are within the IR35.
• Another reason for presenting a status determination statement is for an "outside IR35" examination is so that the client is responsible for the national insurance and contractor's tax up until the provided statement.