Coronavirus: The Self-Employed, Foreign Workers and GDPR – What you need to know

The Self-Employed

As with those who are employed under the PAYE scheme, there remains a number of unanswered questions when it comes to the self-employed and what support measures the government will be putting in place.
The government is currently considering a proposed amendment to the Coronavirus Bill which could see the introduction of Regulations which would provide “freelancers” and “self-employed people” with guaranteed earnings during this period of crisis.
The proposal would see freelancers and the self-employed access the lower of either:

• 80% of their monthly net earnings, average over the last three years; or
• £2,917 per month

As with the Job Retention Scheme there are a lot of unanswered questions in respect of this proposal including:

• How is “freelancer” defined? Is this simply an individual worker who is not subject to PAYE.
• Who will be responsible for applying for any grants for freelancers and the self-employed? The individual or their employer equivalent or, the individual’s intermediary company?
• How will the net earnings be calculated when figures are often based on gross amounts with the net figure not becoming clear until HMRC have calculated the relevant taxes
• Will self-employed persons who mostly receive payment through dividends be able to count the dividend payments towards net earnings?

We expect details of the proposed Regulations relating to freelancers and the self-employed to be announced at the same time as the details relating to the Job Retention Scheme at which point we shall update you in full.
For completeness, the government has already confirmed that, for the purposes of sick pay self-employed claimants on Universal Credit who are required to stay at home or are ill as a result of coronavirus will not have a Minimum Income Floor (an assumed level of income) applied for a period of time while affected.

Workers from Overseas

One of the major implications of the Coronavirus crisis is that it has completely changed the face of global travel as we knew it. When it comes to UK immigration and overseas workers the coronavirus has had a far reaching impact and the government has issued guidance to assist employers with their immigration issues.

Visa Expiry

Where employees who are visa nationals and:

• are currently in the UK;
• have complied with their visa conditions prior to the coronavirus outbreak; and
• their visa expires between 24 January 2020 and 30 May 2020

the employee can currently be granted further leave to remain until 31 May 2020.
To obtain any extended leave the employee must contact the Coronavirus Immigration Team to confirm that their visa is due to expire and to explain why they need an extension (most likely because of travel disruption).
The Home Office has been clear that where an individual extends their visa through this route, they will not be subject to enforcement action and this will not impact them negatively for any future visa applications.

Sponsor Obligations

Reporting Absence

Companies that sponsor migrants under Tier 2 or Tier 5 will not be required to report a sponsored employee’s absence if it is linked to coronavirus and if they have authorised this absence e.g. they are self-isolating and you have received an online isolation note.
The Home Office has confirmed that sponsors do not need to withdraw sponsorship for affected employees who have been absent from work for more than 4 weeks if they consider these are exceptional circumstances, which would include absences related to coronavirus.
Employers must however, be certain as to the whereabouts of their visa employees at all time to ensure ongoing compliance with the terms of their Sponsor Licence.

Homeworking

The Home Office has confirmed that sponsors do not need to report sponsored workers as working from home, where this is directly related to the coronavirus outbreak. This is in contrast to the usual sponsor obligations.

Furloughing sponsored workers

There has been no clear guidance on this point from the Government but we will provide an update on this in due course. Employers must not act in a discriminatory manner when selecting (or not selecting) visa national employees for furlough leave.

GDPR and Data Protection

The Information Commissioners Office will provide new guidance to businesses in light of the coronavirus pandemic.
The new guidance will not make any amendments to existing statute but it will acknowledge and accept that there may be delays in employers complying with normal timescales, for example, when responding to Data Subject Access Requests.
Employers must still comply with all of their usual data protection and GDPR obligations and they must take all reasonable steps to ensure compliance within the statutory timescales.