Elizabeth Bremner

The pandemic dominated most aspects of our lives in 2020 and employment law was no exception. The introduction of the Coronavirus Job Retention Scheme (CJRS) and its subsequent variations was undoubtedly the most talked about legislation in employment law circles as ‘furlough’ became a regular household word.

While the CJRS and any possible further variations will continue to be part of our lives until at least the end of April 2021 (for now), here is a summary of how 2020 finished up and what we can expect from employment law in 2021.

A Brexit agreement was finally reached and from 1 January 2021 new working arrangements for EU nationals began. Decisions of the European Court of Justice made prior to 1 January will continue to be binding on UK courts and tribunals. UK courts will not be bound by future decisions but they may still refer to them.

From 26 December, mainland Scotland was placed into level 4 restrictions and on 5 January a new lockdown came into effect. While many businesses and employees returned to or commenced furlough arrangements, the government continued to resist demands for the legal right to furlough for working parents while school closures are in place and confirmed that the choice as to whether or not to furlough remains with the employer.

On 26 January 2021, and then on a monthly basis from February 2021, HMRC will publish the details of employers who have made claims under the CJRS for any month from December 2020 onwards.

A private members’ bill seeking to require the government to assess and report gaps in support during the pandemic is due to have its second reading on 29 January. Areas of concern include support for the newly self-employed who do not qualify for support under current rules and support for those who are self-isolating.

In December 2020, the UK government launched a consultation seeking views on a proposal to extend the ban on exclusivity clauses beyond zero hours contracts, to contracts where the workers’ guaranteed weekly income is less than the Lower Earnings Limit, currently £120 a week. The consultation closes in February 2021.

The second reading of the Pregnancy and Maternity (Redundancy Protection) Bill 2019-21 is scheduled to take place in March. If passed, this bill will see an extension of redundancy protection currently offered to women on maternity leave to staff on other types of parental leave (adoption leave and shared parental leave), those who have returned from maternity leave within six months and those who have told their employer they are pregnant.

Changes to the IR35 rules are due to come into force on 6 April 2021, after having been delayed from April 2020.

On 1 April 2021, there will be increases to the National Minimum Wage.

The CJRS is currently due to end on 30 April. Employers should keep this date in mind, particularly if they are required to conduct any collective consultation in relation to large scale redundancies prior to the end of the CJRS.

Although no date has been confirmed, Parliament is set to hold a debate on mandatory ethnicity pay gap reporting after a petition calling for introduction passed 130,000 signatures. There is already mandatory gender pay gap reporting which, unless the government announces otherwise, will be obligatory for employers with more than 250 employees again this year. 2019/2020 reports were not mandatory as a consequence of the Covid-19 outbreak in March 2020.

It remains to be seen whether there will be an increase in dismissal cases relating to redundancy, furlough and furlough fraud, whether we will see any disputes relating to returns to workplaces and ongoing health and safety concerns, or even whether any cases emerge involving a requirement to vaccinated. There may be a number of issues that arise in respect of the vaccination and while the answer is still typically ‘no, you cannot require employees to get a vaccine’, we will continue to watch that space.

We hope 2021 will see a return to something closer to normality for businesses, with more to talk about than the CJRS and its ever-changing forms. In the short term, the UK’s departure from the EU should not cause any major changes to obligations and entitlements under current employment law.

Elizabeth Bremner is an associate at Gillespie Macandrew. This article first appeared in The Scotsman.