Category: Employment Law

Employment Law Updates – April 2022

A raft of changes to employment law come into effect in April 2022 and more still are in the pipeline. It is important that HR teams, Payroll personnel and operational managers are aware of the changes.

Gender Pay Gap Figures – 31 March and 05 April 2022
Organisations have 12 months to publish their gender pay gap figures from the relevant snapshot date (31 March for the public sector and 5 April for the private and voluntary sectors). This means that the next gender pay gap reporting deadline is 30 March 2022 for public-sector employers and 4 April 2022 for private-sector and voluntary-sector employers.

Our training on pay gap reporting courses start at just £285+vat for 14 people.

National Minimum and Living Wage Increases 01 April 2022
Rates for the national minimum wage will increase on 1 April 2022. The hourly rate of the minimum wage will increase from:

£8.91 to £9.50 for workers aged 23 and over (the national living wage)
£8.36 to £9.18 for workers aged 21 or 22
£6.56 to £6.83 for workers aged 18 to 20
£4.62 to £4.81 for workers aged under 18 who are no longer of compulsory school age,
£4.30 to £4.81 for apprentices under 19, or over 19 and in the first year of the apprenticeship.

Employers should check their pay rates against the forthcoming minimum wage rates and ensure that, where necessary, they increase remuneration for the first pay reference period beginning on or after 1 April 2022

Review of Temporary Guidance on “Right to Work Checks” – 05 April 2022
Since 30 March 2020, temporary guidance on right-to-work checks has been in place to allow employers to conduct checks without seeing the individual face to face. Checks can be carried out via video and scanned, or photo versions of the original required documents can be used. Employers have a defence against a civil penalty if they complete a right-to-work check in accordance with the temporary adjustments. As long as employers followed the temporary guidance, they are not expected to carry out face-to-face checks retrospectively. However, these temporary measures are due to last only until 5 April 2022. Employers should look out for new guidance on right-to-work checks that will apply from 6 April 2022 (although it is possible that the temporary guidance will be extended)

Readers should also be aware, that leaving the above aside, the Government guidance on “right to work checks” was updated on 17 January 2022

Statutory Family Related Pay and Sick Pay Increases- 03/06 April 2022
The rate of statutory maternity, adoption, paternity, shared parental and parental bereavement pay will increase to £156.66, up from £151.97. The increase normally takes effect on the first Sunday in April, which in 2022 is 3 April.

The rate for statutory sick pay will also rise on 6 April 2022. The new rate will be £99.35, up from £96.35. It is up to employers to make sure that staff on maternity, paternity, adoption, shared parental and parental bereavement leave, and staff on sick leave, are paid these statutory minimum rates. Employers also need to review their policies and documents that mention the rates, such as their maternity policies and sickness absence procedures

New Limits on Statutory Redundancy Pay Calculations- 06 April 2022
New limits on employment statutory redundancy pay will come into force on 6 April 2022. Employers that dismiss employees for redundancy must pay those with two years’ service an amount based on the employee’s weekly pay, length of service and age. The weekly pay is subject to a maximum amount (£544 from 6 April 2021). The new amount will be confirmed in the draft Employment Rights (Increase of Limits) Order 2022, which should be published some time in February. Employers should ensure that calculations for statutory redundancy payments are made on the basis of this new maximum amount for redundancy dismissals on or after 6 April 2022

Changes in the pipeline for 2022/23

changes to the right to request flexible working procedures
the introduction of statutory carers’ leave
the introduction of neonatal leave and pay
extended redundancy protections during pregnancy and maternity leave
reforms to the requirement to produce modern slavery statements
reforms to sexual harassment laws
amendments to the rules on settlement agreements
new provisions to give workers the right to request a more predictable and stable contractual working pattern
new rules to ensure that tips are passed to workers in full.

Image Credit: The Law by smlp.co.uk used under CC BY

Preventing Sexual Harassment at Work Training Course

Sexual Harassment at work remains rife, hardly a day goes by without another case hitting the headlines. No company, organisation or employer can afford to hide their heads in the sand and take the stance it doesn’t happen here.

UN Women UK January 2021 report on sexual harassment in open spaces found that 86% of women aged between 18 and 24 had experienced some form of sexual harassment but only 3% reported it. The general consensus being that reporting it would not make any difference.

Safeline report 63% of women aged 16-24 had been subjected to unwanted sexual behaviour at work with nearly 20% reporting that the person harassing them was their manager or a person in authority!!!!!

It is imperative that HR and Training Managers address this issue without further delay. The pending Duty to Prevent Sexual Harassment at Work will undoubtedly lead to a significant rise in the number of tribunal cases, adverse publicity and compensation payments but it is also important that we do not forget the pain suffering and anxiety sexual harassment causes, nor its impact on productivity, time off work and staff churn. There are many studies that show sexual harassment leads to PTSD !

HR and Training Managers need to work together make sure clear policies and protocols are in place, that all management and staff understand what sexual harassment looks and feels like, why it is not tolerated within the organisation and that all reports, will be followed up thoroughly with severe consequences for abusers, whatever their role or position within the company.

In the event that any disciplinary cation is appealed is vitally important that line managers can evidence that company/organisational policies and procedures have been fully cascaded, explained and agreed to by all.

No easy task but support from Concrew Training helps, find out more here

Image: harassment – later accusation, belated accusation, many years later by valeriy osipov used under CC BY 4.0

Are you up to date with the latest in employment law?

UK employment and equality laws evolve and develop in line with employment tribunal rulings. It is almost a full time job to keep track of everything but our courses on employment and equalities legislation bring you up to date on the key developments, they should be considered essential for all HR teams and operational managers.

Some recent developments include:

COVID 19 work changes still mean established employment law will be applied!
An Employment Tribunal recently considered whether an employee who raised health and safety concerns and said that he did not want to commute into or attend his workplace during lockdown was unfairly dismissed as a result. He lost the case. And the decision shows that by taking a considered and careful approach to employee concerns, employers can avoid successful unfair dismissal claims being made against them. Our employment and equality law courses highlight this case and others breaking almost every day into the news agenda.

What happens when “POLITICAL RIGHTS” bump into each another?”
Collisions between religious beliefs and the rights of the LGTB community are well versed and addressed in case law. And the topic of gender identity and sex fuels strong feelings. Employers often find it hard to decide on the appropriate action to take when dealing with complaints about comments made by staff in these sensitive areas. Our training courses in employment and equality laws help to explain what employers should carefully consider. The Employment Appeal Tribunal recently issued a judgment on this very subject and remitted a case back to the lower court who had decided otherwise. The case judgement takes you through the complexities of the issue and echoes the mantra in our courses, namely that “every case turns on its own merits”.

Not training staff could lead to successful Constructive Dismissal claims
A recent Employment Appeal Tribunal (EAT) judgement found that a Teaching Assistants employer had breached the implied duty to provide a safe working environment by failing, despite repeated requests over several months, to provide training. This met the criteria for a fundamental breach of contract and the constructive dismissal claim was successful. Our employment law courses convey dual learning points about its scope AND its links to other statutes, in this case health, safety and well-being at work regulations.

Banter to one person could easily be harassment to someone else
Banter is a slippery word at the best of times. BUT in recent times social media has given the subject greater visibility and resulted in tribunal judgements. And in a recent judgement it was found that a care assistant whose colleagues called her a “slut” and suggested she visit a road “notorious for prostitutes” after they found her modelling photos on Facebook was the victim of harassment. Our courses on the use of social media at work as well as our employment and equality law workshops provide updated insights into this and other related topics, including a focus on best policy practice.

The Law by smlp.co.uk used under CC BY 2.0

UK Immigration rules

Following the UK’s exit from the EU the rules relating to foreign nationals working and living in the UK were revised. It is important that UK businesses understand these rules and follow them, closely when employing foreign nationals

Entry requirements revolve round

UK Points Based Immigration System
UK Shortage Occupations
The concept of “Tradeable” characteristics
Other/specialist routes to work and study in the UK.

Points System
To be eligible to work in the UK an applicant must secure 70 points. These are totted up from a selection of eight characteristics. The first three characteristics are mandatory and the applicant must meet these full. The other five characteristics are termed “tradeable”. A sort of “pick and mix” approach for applications based on these “tradeable” considerations but with the proviso that the first three characteristics are fully met.

Shortage Occupations
Every job has a Standard Occupational Classification code, and each code has a designated skill level. The code determines whether the job is eligible for the Skilled Worker Visa route.

Other Entry Routes

Agriculture Visa
Health and Care Visa
Intra-company Transfer Visa
Graduate Route
Global Talent
Start up and Innovator Visa
Creative and Sporting
International Students and Graduates
Special Circumstances

Concrew Training’s courses on UK employment legislation cover all this and much, much, more

Tick Box Training is High Risk

If you are scheduling low cost training, often internet based self-study training that uses a nothing or just a short tick box questionnaire at the end to validate the learning you may be putting your organisation at risk.

The recent Allay (UK) Ltd v Mr S Gehlen case made it clear that evidencing training in itself does not provide a defence against breach of legislation.

The training has to be effective that is to say management and employees alike have to adhere to legislation and when/if breaches occur action including retraining must take place.

Concrew Training offers courses that cover many key areas including

Data Protection, GDPR and PECR
Modern Slavery
Equality and Diversity
Defensible Documentation
Equal Pay
Redundancy
Tupe
Social Media rights and responsibilities
Grievance and Disciplinary action

Image Credit: The Law by smlp.co.uk used under CC BY 2.0

Post Brexit – Right to Work Checks

Carrying out right to work in the UK checks for European nationals post Brexit.

Employers must continue to carry out right to work checks for all workers before employing them, as was the case prior to Brexit. Employers can continue to use European Economic Area (EEA) and Swiss passports and national identity cards as evidence of an individual’s right to work in the UK until 30 June 2021.

Employers can also use the online checking service to confirm that a candidate has settled or pre-settled status and therefore has the right to work in the UK. However, up to 30 June 2021, candidates do not have to agree to share their status using the online checking service. They can provide their passport or national identity card as an alternative. Governmentguidancesuggests that, up to 30 June 2021, an employer that insists on seeing evidence of settled or pre-settled status risks a complaint of race discrimination.

Following the UK’s departure from the EU on 31 January 2020, a transition period was in place until 31 December 2020. EEA and Swiss nationals who were in the UK before the end of the transition period have until 30 June 2021 to apply for either settled or pre-settled status, which will give them the right to work in the UK.

There is no requirement for employers to carry out retrospective right to work checks for existing EEA and Swiss national employees to confirm that they have settled or pre-settled status. In other words, if an employer has conducted a compliant right to work check for an EEA or Swiss national before 1 January 2021, it does not need to repeat this.

EEA and Swiss nationals entering the UK from 1 January 2021 will not be able to apply for settled or pre-settled status. Because free movement between the UK and the EEA ended on 31 December 2020, they will require a visa to be able to work in the UK under the new immigration system. Therefore, to confirm the right to work of EEA and Swiss nationals arriving in the UK on or after 1 January 2021, employers will need to see evidence of their visa alongside their passport or national identity card.

EEA and Swiss nationals are not required to share their settled or pre-settled status prior to 30 June 2021. This may present an issue for employers with new starters between 1 January and 30 June 2021, as they may not know if the employee was already in the UK before 1 January 2021, and therefore whether they require a visa. Government guidance onright to work checksdoes not address this specific issue.

When does an employer need a sponsor licence?
An employer needs a sponsor licence if it intends to employ a foreign national who requires a UK visa, under certain immigration routes. From 1 January 2021, a new immigration system applies equally to European Economic Area (EEA) nationals (except Irish nationals) and other non-UK nationals. Prior to 1 January 2021, employers needed a sponsor licence to employ foreign nationals from countries outside the EEA under tier 2, or the skilled worker route, and certain other routes of the immigration system. Employers that do not currently have a sponsor licence will need to apply for one if they wish to recruit any non-UK nationals, including those from inside the EEA, under the skilled worker route (and certain other routes) from 1 January 2021.

An employer will not need a sponsor licence to employ an EEA national who has settled or pre-settled status, or to employ an Irish national. When an employer has a sponsor licence it can issue certificates of sponsorship to individual foreign nationals. The individual then uses the certificate to apply for a visa. Employers can sponsor an employee only if the role meets the minimum requirements relating to skills and salary.

What should an employer do if an employee’s application for settled status is not successful?
Employees who are European Economic Area (EEA) or Swiss nationals, who are in the UK prior to the end of the Brexit transition period on 31 December 2020, can apply for settled status, which will give them the right to remain indefinitely in the UK. An applicant who has not been resident in the UK for five years will be granted pre-settled status, which can be converted to settled status after five years’ residence. The deadline for applications for settled or pre-settled status is 30 June 2021.

Settled or pre-settled status can be refused on grounds of eligibility, for example if the individual is not an EEA national (or a qualifying family member) or is not resident in the UK. It can also be refused on grounds of suitability, for example if the individual has been convicted of a particularly serious crime or is deemed to be a threat to public security.

If an application is refused the applicant can apply again at any time up to 30 June 2021, submitting new information or evidence. In some circumstances, the applicant can apply for anadministrative reviewof the decision.

An employer could consider providing an employee with access to legal assistance for a further application or an administrative review. Ultimately, if the employee does not obtain settled or pre-settled status, they will not have the right to work in the UK and will need to apply for immigration permission under an alternative route.

Image Credit:Boris Johnson Brexit Presserby Number 10 used under CC BY-NC-ND 2.0

Coronavirus – Annual Leave, Flexible Working and Holiday Pay

Can an employee take annual leave while on furlough?
Government guidance onHoliday entitlement and pay during coronavirus (COVID-19)confirms that furloughed employees can take annual leave, without the furlough period being disrupted.

Employers must pay furloughed employees their normal rate of pay for a period of holiday, rather than any reduced amount they receive during the furlough. They must top up the amount they can claim under the Coronavirus Job Retention Scheme.

From 1 July 2020, furloughed employees can work on a flexible, part-time basis for their employer (known as flexible furlough). The employer can claim under the Coronavirus Job Retention Scheme for the hours that the employee does not work and is recorded as being on furlough.

HM Revenue and Customs guidanceon the scheme states that, where an employee is flexibly furloughed, “any hours taken as holiday during the claim period should be counted as furloughed hours rather than working hours”.

It goes on to say that employers should not place an employee on furlough simply because they are on holiday for that period. Therefore, an employer’s decision about whether to furlough an employee should not be influenced by any annual leave, but if an employee takes annual leave during a period covered by a flexible furlough arrangement, the employer should record any hours they were due to work as furlough. It can claim for these hours under the scheme, ensuring that it pays the employee their normal rate of pay for the annual leave.

Many employers that have furloughed employees will not be in a financial position to pay them in full during annual leave. These employers can refuse any requests for annual leave during the furlough period by giving therequired notice. Employees will be able to carry over unused leave in some circumstances.

Where an employer can afford to top up the pay of a furloughed employee, it may consider requiring them to take annual leave during the period of furlough.

Whether or not this can be done in compliance with the Working Time Regulations 1998 (SI 1998/1833) remains uncertain.

When does overtime have to be included in holiday pay?
Holiday pay must be calculated based on the employee’s normal pay. Where an employee normally works overtime, this should be included in the calculation of their holiday pay.

Overtime that the employer is contractually obliged to offer and that employees are required to work must always be included in holiday pay.

InBear Scotland Ltd and others v Fulton and others; Hertel (UK) Ltd v Woods and others; Amec Group Ltd v Law and others [2015] IRLR 15 EAT, the Employment Appeal Tribunal (EAT) held that regular overtime that is not guaranteed, but that employees are required to work when it is offered, must also be included.

There is no definition setting out how regularly overtime must be worked for it to be included, but the general principle is that pay that is “normally received” should be included in holiday pay. If an employee has worked a settled pattern of overtime over a period, payment for that overtime is pay that they normally receive and must therefore be included in holiday pay.

Where there is no settled pattern of overtime, the employer should calculate average pay over a reference period leading up to the period of annual leave, although the courts have not addressed what a suitable reference period would be.

The Court of Appeal addressed the question of whether overtime that is voluntary must be included in the calculation of holiday pay inEast of England Ambulance Service NHS Trust v Flowers and others [2019] IRLR 798 CA. It held that voluntary overtime must be included if it is part of a pattern of work that is sufficiently regular and settled for payments made in respect of it to amount to normal remuneration. This will be for tribunals to decide on the facts of each case.

The right to be paid for non-guaranteed overtime in holiday pay derives from case law of the European Court of Justice, and so applies only to holiday pay for the four weeks’ minimum annual leave under EU law, not to the additional 1.6 weeks provided for by the Working Time Regulations 1998 (SI 1998/1833).

Employers should decide their policy on how to treat the additional 1.6 weeks’ statutory minimum leave and any additional contractual entitlement but may decide to include pay for overtime in all holiday pay to avoid complicating the administration of payments.

Flexible working requests:
When are employers’ decisions discriminatory? While the law on the right to request flexible working has not changed, employers are likely to be seeing a shift in employees’ expectations around flexible working. Some employees who have been working flexibly for a sustained period during the pandemic may wish to make this arrangement permanent. The employee may be able to show that they have continued to perform to the required level, or even exceeded expectations, with these changes in place. Now more than ever, employers need a strong reason for refusing flexible working requests or could find themselves on the losing end of indirect disability, sex, or age discrimination cases.

Image Credit:What does furlough from a job means on a whiteboardby Jernej Furman
used under CC BY 2.0

Coronavirus – Whistle Blowing and Grievances

Whistleblowing: Raising concerns about employer’s conduct

The raising of concerns about how an employer is handling workplace issues during the coronavirus pandemic would count as a disclosure.

To be protected under whistleblowing legislation, the worker must be making the disclosure in the reasonable belief that they are doing so in the public interest. This means that a worker who is dismissed (for example put to the top of the list for redundancy) or subjected to a detriment (for example bullied), for raising genuine concerns about their employer’s safe working practices could bring a whistleblowing claim.

Another scenario that could lead to a whistleblowing claim is an employer retaliating against an employee who has raised genuine concerns about its use of the Coronavirus Job Retention Scheme.

HM Revenue & Customs has a hotline for reporting misuse of the scheme.

Handling discipline, capability, and grievance procedures

How employers have been handling disciplinary and grievance procedures is sure to be examined by employment tribunals in the next couple of years. Claims are likely to involve:

disciplinary action where employees refuse, or fail, to comply with the employer’s COVID-19 rules put in place to reduce the risk of transmission.
and the handling of disciplinary, grievance and capability procedures during the pandemic.

Claimants may focus on delays caused by the pandemic tainting a process’s overall fairness, and remote meetings and hearings being conducted unfairly.

Image credit: The Law by smlp.co.uk used under CC BY

Understanding Coronavirus – Health and Safety Employment Law

Coronavirus (COVID 19) has serious implications for health and safety in the workplace and some potential openings for litigation for the unwary. Our employment law courses cover all the latest key issues including:

Health and safety: Refusal to attend dangerous workplace.
Health and safety duties towards pregnant workers

Health and safety: Refusal to attend dangerous workplace.
Employees are required to obey their employer’s reasonable instructions. However, employees are protected against detriment or dismissal where, in “circumstances of danger” that they reasonably believe to be “serious and imminent“, they leave their workplace or refuse to return. There must be actual “circumstances of danger” and the employee must also “reasonably believe” that the danger is “serious and imminent”. Coronavirus-related employment tribunal claims for detriment or dismissal following a refusal to attend work are likely to revolve around whether the claimant’s belief in “imminent and serious” danger was reasonable, depending on the safe working practices the employer put in place.

Health and safety duties towards pregnant workers
While employers have a duty to look after the health and safety of every worker, they have additional obligations in relation to pregnant workers. Employers that fail to fulfil these obligations could face pregnancy and maternity discrimination claims. When maintaining safe working practices during the coronavirus pandemic, employers should ensure that:

the risks to pregnant workers are assessed individually; and
pregnant workers are consulted about potential adaptations to their role.

Find out more with employment law training course

Image credit: The Law by smlp.co.uk used under CC BY

Understanding Coronavirus and Employment Law

Understanding Coronavirus and Employment Law
Coronavirus (COVID 19) has pushed many businesses to the brink and beyond. In desperate effort to stay afloat staff are being furloughed and laid off. Many more face cuts in hours and pay. As the song goes, “there may be trouble ahead” for those that have rushed in.

Concrew Training’s courses on employment law are bang up to date and cover the latest key issues and challenges including:

Selection for furlough: Decision-making to be scrutinised?
Redundancy: Selection process and informing and consulting
Breach of contract when cutting furloughed employees’ pay.

Selection for furlough: Decision-making to be scrutinised?
There will be employees who are aggrieved at being placed on furlough, particularly where this is accompanied by a pay cut. Equally, there will be employees who would prefer to have been furloughed, but their employer has turned down their request. Normal employment law principles should have been applied to any furlough selection process, so employers may face discrimination claims and arguments that their furlough decision-making has breached the implied term of mutual trust and confidence. While employment tribunals are likely to be sympathetic to employers that have had to make quick decisions, furloughing decisions still need to be as fair and objective as possible.

Redundancy: Selection process and informing and consulting
With many employers having to make large-scale redundancies often with little warning because of coronavirus, will tribunals be inundated with these claims in the next few years? Both individual and collective redundancy issues should feature. Employers need to bear in mind that: > a failure to warn and consult individually with an employee about their proposed redundancy could result in an unfair dismissal claim; and collective consultation obligations are triggered when they are proposing to make redundant 20 or more employees at a single establishment over a period of 90 days or less, and that failure to comply can result in a protective award of up to 90 days’ pay for each affected employee.

Breach of contract when cutting furloughed employees’ pay.
The lack of clarity within the Government’s guidance on agreement to furlough means that there is trouble on the horizon for employers that have unilaterally imposed a pay cut on furloughed employees. For example, the guidance on the extended Coronavirus Job Retention Scheme, states that employers must “have confirmed to their employee (or reached collective agreement with a trade union) in writing” that they have been furloughed, but “the employee does not have to provide a written response”. Strictly speaking, employers that are reducing an employee’s pay to furlough them should have obtained the employee’s explicit written agreement, as this constitutes a variation to their terms and conditions of employment.

Find out more with our employment law training course

The Law by smlp.co.uk used under CC BY