What's on the horizon for employment law in 2021? Part 1: The elephants in the room

5 minute read
12 February 2021

What is on your HR agenda for the year? The elephants in the room of coronavirus and Brexit remain a huge feature of 2021. Nevertheless, those are not the only employment law developments on their way.

Here, Gowling WLG's Employment, Labour & Equalities team bring you a quick three part round-up of the employment law developments that should be on your radar over the next 12 months. In part one, we address those elephants in the room: COVID-19 and Brexit.

In parts two and three, the team looks beyond those elephants to the key 2021 legislative changes and awaited court judgments from cases heard in 2020 (part two) and finally the upcoming 2021 appeals to note (part three).



The elephants

  • COVID-19 pandemic
  • Brexit

COVID-19 pandemic

The jumbo elephant in the 2021 room is of course, coronavirus related workplace issues. Employers continue to face challenges around ensuring COVID-19 safe workplaces and the rise of workplace testing, which will be with us for some time yet, see 'Employment Update Series: COVID-19 workplace testing: navigating the legal risks'.

The UK vaccination programme offers the promise of the return to workplaces later in the year for millions of workers either working from home or on furlough. As the programme proceeds full steam ahead, employers face difficult decisions ranging from whether to allow paid or unpaid time off for attending vaccination appointments, through to the highly controversial imposition by employers of a contractual requirement for all employees to be vaccinated before returning to the workplace, see 'Can I make my staff have the vaccine?' and 'COVID-19 and senior living: what approach should you take with staff to increase vaccinations?'.

Employers also face continuing issues around managing 'working from home' arrangements. Even when 'the work from home if you can' advice is lifted, to what extent will such flexible working arrangements continue beyond the pandemic? How can employers best manage a remote workforce? If remote working becomes the norm, will pay scales structured with a link to a worker's geographic location (London-weighting) become a thing of the past? Employers need to consider now how they will address future working patterns and structures.

Life after furlough is another pressing issue for many employers. The Coronavirus Job Support Scheme (CJRS) is due to close on 30 April 2021, see 'CJRS Extension Q&A'. Will calls for a further extension be met? Once the scheme has ended will furloughed employees have jobs to return to or will redundancies be sadly inevitable, see 'Redundancy: the new normal?'. On the other side, if recruiting, what challenges will dealing with large numbers of applicants bring? See 'Running a fair and inclusive recruitment process during the pandemic'.

Brexit

The other elephant in the room is of course, Brexit.

The starting point is that on 1 January 2021 nothing changed. The Government's position is that there is no intention of lowering or loosening standards on workers' rights.

EU law is 'retained' so all laws derived from the EU continue to apply until Parliament amends them. When it comes to employment law, the EU-UK Trade Agreement is not very prescriptive. A change in employment law is only prohibited if it affects 'trade or investment'. A change that doesn't clear that bar is possible. For example, the wholesale removal of employment rights such as those under the Working Time Regulations 1998 (WTR), would highly likely lead to a dispute under the EU-UK Trade Agreement, but tweaking of some of the rights contained within the WTR is unlikely to do so. In January 2021, a leaked Government review into how EU employment rights protections could possibly be changed after Brexit, including those in relation to the 48-hour working week, calculation of holiday pay and record keeping requirements was reported in the Financial Times (so tweaking the WTR not removal of the WTR). However, following much criticism, the Business Secretary quickly confirmed that the proposed review was now cancelled and reiterated that the Government is "not going to lower the standards of workers' rights".

In future, Brexit may well result in growing divergence of employment rights from the EU either through UK legislative changes (tweaks to existing rights not significant enough to affect 'trade or investment') or through future divergent case law, but as for 2021, no Brexit-related changes are expected yet.


NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.