Government reforms (1): April Changes – Are you ready?

1 April 2022

Increase in National Living and Minimum Wage

The new rates are as follows:

  • Age 23 plus: National Living Wage increase from £8.91 to £9.50 per hour;
  • Age 21 to 23 (inclusive): increase from £8.36 to £9.18 per hour;
  • Age 18 to 20 (inclusive): increase from £6.56 to £6.83 per hour;
  • Age 16 or 17 (inclusive): increase from £4.62 to £4.81 per hour; and
  • Apprentice rate: increase from £4.30 to £4.81 per hour.

5 April 2022

Right-to-work checks

From 30 March 2020, the rules requiring employers to conduct right-to-work checks in person were temporarily lifted as a result of the COVID-19 pandemic. See our updates on this here.  From this date, employers have been able to carry out right-to-work checks via video and using scanned documentation as opposed to originals.

These temporary measures are due to end on 5 April 2022. The government has not yet confirmed what the expectation will be in future, but employers would be wise to assume that right-to-work checks may need to take place in person again.

Gender Pay Gap reporting

Organisations with 250 or more employees are required to publish their gender pay gap report by 4th April 2022 (30th March 2022 for public sector employers).

Reports must be published on the company website as well as on the Government’s gender pay gap portal. Employers have the option of providing an explanation and outlining the steps that are being taken to address the pay gap.

6 April 2022

Statutory sick pay (SSP) to increase

SSP will increase from £96.35 to £99.35 per week.

National Insurance contributions to rise

On 6 April 2022, National Insurance contributions for employers and employees will rise by 1.25%. This increase will fund health and social care and will be replaced in April 2023 by a separate health and social care levy (at which time, National Insurance contributions will revert to current levels).

Increases in Statutory Redundancy Pay, other statutory payments and Tribunal awards

The usual annual increase in statutory payments and Tribunal awards includes the:

  • maximum limit for a statutory week’s pay (used to calculate statutory redundancy payments and the basic award for unfair dismissal) from £544 to £571.
  • maximum compensatory award for unfair dismissal from £89,493 to £93,878. (Although the award is unlimited for certain automatically unfair dismissals, for example, health and safety or whistleblowing).
  • maximum basic award for unfair dismissal and statutory redundancy payment from £16,320 to £17,130. That makes the maximum total basic and compensatory awards for unfair dismissal £111,008 (generally subject to a limit of 52 weeks’ actual pay).
  • minimum basic award for certain automatically unfair dismissals from £6,634 to £6,959 (i.e. those due to health and safety, employee representative, trade union, or occupational pension trustee reasons).

The new rates take effect where the ‘appropriate date’ for the course of action, such as the date of termination in an unfair dismissal claim, falls on or after 6 April 2022.

11 April 2022

Increases to the statutory rates for maternity (SMP), paternity (SPP), shared parental pay (SSPP), adoption (SAP) and sick pay (SSP)

Statutory rates for everything other than sick pay will increase from £151.97 to £156.66 per week per week or 90% of average earnings if lower.

Lower earnings limit

The amount of the weekly lower earnings limit that applies to National Insurance contributions (below which employees are not entitled to SMP, SPP, SAP, SSPP and SSP) is increasing from £120 to £123).

Government reforms (2): Compulsory vaccines – to be cancelled

What do we already know?

We updated you in our July 2021 Newsletter Government reforms (2): Coronavirus (Covid-19): Mandatory vaccinations for care home staff that the Government announced that from October 2021 anyone working in a registered care home providing nursing or personal care would need to be fully COVID-19 vaccinated with both doses by 11 November 2021 (unless exempt under regulations).

We also updated you in our December 2021 Newsletter Government reforms (4): Compulsory vaccinations – Healthcare that the Government also intended to roll-out the compulsory vaccination to anyone working in health and social care services who interacts with patients and service users. This legislation was due to come into force on 1 April 2022.

What’s new?

The Government plans to scrap all compulsory vaccinations, in both care home and health and social care settings. Sajid Javid, Health and Social Care Secretary, said he believes that the position has now changed with the omicron variant proving to be milder than previous versions of the virus. No doubt the shortage of workers in health and social care was also a consideration, with the U-turn preceded by warnings of shortages of up to 80,000 workers in the sector.

The Government’s consultation on its plans to cancel the regulations closed on 16 February 2022 (see consultation here) and, subject to the responses, the Government will reverse the regulations in the near future. The Government also consulted on its alternative proposals which were based on its view that vaccines save lives and that everyone working in health and social care has a professional duty to be vaccinated against COVID-19.

covid vaccination

Case update (3): Vicarious liability 

What do we already know?

 We updated you in our December 2020 Newsletter Case update (2): Employer’s liability – the tribunal finds nothing to laugh about in an employee’s practical joke that the High Court in Chell v Tarmac Cement and Lime Ltd found that an employer was not liable for an employee’s practical joke that caused another person personal injury. This was because the incident was unconnected to any instruction given by the employer to the employee in relation to his work and could not be said to be within the field of activities assigned to the employee by his employer.

What’s new?

The Court of Appeal has upheld the High Court’s decision that the employer was not vicariously liable for its employee’s practical joke. Of particular importance:

  • the injury was caused by an exploding pellet target, which was not the employer’s equipment and had no place on the site.
  • hitting the pellet in no way formed part of the employee’s work. Therefore, the risk of the pellet target exploding was not inherent in the business, which only provided the background and context for the wrongful act.
  • the employee’s role was not sufficiently closely connected to his wrongful conduct.  In particular:
    • the employee’s conduct in no way advanced the purposes of his employer.
    • there was no supervisory relationship between the employee and the contractor who was injured and therefore no abuse of power by the employee.
    • there was no particular friction between the employer and the contractor who was injured at the time of the incident and the contractor had not asked to be removed from the site.

The Court of Appeal also helpfully found that there was no need for the employer to show that it had provided specific instructions or systems to avoid practical jokes or ‘horseplay’.

Implications:  This is good news for employers. However, it remains important that staff have well-defined roles and responsibilities and are made fully aware of what is appropriate behaviour at work. Also, that there are appropriate health and safety policies and procedures and the staff are provided training in this respect. Then if a practical joke does go wrong at least it will be likely be viewed as the result of the employee’s choice and (poor) sense of humour.

Case update (2): Vexatious grievances and unfair dismissal 

Summary:  Was a dismissal for gross misconduct relating to the raising of vexatious grievances which the employee refused to either pursue or withdraw, fair?

Yes, says the EAT in Hope v British Medical Association, available here.

Background: If an employee raises a grievance for dishonest or malicious reasons this will be ‘vexatious’ and it may be appropriate to take disciplinary action against that employee. In some circumstances it may be fair to dismiss them. Whether such dismissal is fair will ultimately depend on the facts of each case and whether the employer has acted reasonably in all the circumstances (in compliance with s98 Employment Rights Act 1996 (ERA)).

Facts:  Mr Hope, a senior policy adviser with the British Medical Association (BMA), raised seven grievances in just over a year. These were principally about senior colleagues’ failure to involve him in meetings. Mr Hope’s line manager was unable to resolve the grievances as they concerned decisions of more senior managers. However, Mr Hope refused to raise the grievances formally (which would have allowed another manager to resolve them) but also refused to withdraw them. The BMA invited him (as a reasonable management request) to a formal grievance meeting but he failed to attend. The meeting went ahead in his absence and his grievances were not upheld.

The BMA dismissed Mr Hope for gross misconduct for his unreasonable behaviour in bringing vexatious and frivolous grievances and refusing to comply with a reasonable instruction to attend the grievance meeting.

Mr Hope claimed unfair dismissal.

Tribunal decision

The tribunal found that Mr Hope had been fairly dismissed. The BMA had carried out a fair process and dismissal for gross misconduct was within the range of reasonable responses.

Mr Hope appealed. He said that to be fairly dismissed for gross misconduct his behaviour needed to amount to a breach of contract (either deliberate wrongdoing or gross negligence).

EAT decision

The EAT dismissed the appeal. The BMA was entitled to find that Mr Hope’s vexatious and unreasonable behaviour amounted to gross misconduct and it was fair to dismiss him on that basis. It was not necessary to show that Mr Hope had wilfully committed a breach of contract or ‘gross negligence’ to dismiss him for gross misconduct.

Implications:

It is good news that an employee’s conduct in raising (and then not pursuing) repeated vexatious grievances can amount to gross misconduct. It does not need to involve a breach of contract or ‘gross negligence’.

Key factors which validated the employer’s finding of gross misconduct were the employee’s:

  • refusal to neither progress or withdraw the grievances; and
  • non-attendance at the grievance meeting in breach of a reasonable management request.

Practical take-away points are to make sure your procedures clarify that i) the purpose of raising a grievance is to seek a resolution to a genuine complaint and ii) steps in your grievance procedure, such as attendance at meetings, amount to a reasonable management request.

However, take care not to act unreasonably in responding to a grievance. Particularly if the grievance raises allegations of discrimination or a potential protected disclosure Any unjustified less favourable treatment of the employee may result in a claim for victimisation or whistleblowing respectively.

It will still usually be prudent to deal with a vexatious grievance under the grievance procedure (which should comply with the ‘Acas Code of Practice on disciplinary and grievance procedures’). This will put the employer in a good position to defend any subsequent tribunal claim and avoid any uplift in an award for unreasonable failure to follow the Acas Code.

dismissed

Case update (4): Discrimination and time limits 

Summary:  Can a tribunal extend time in a discrimination claim where the employees have waited to issue proceedings while pursuing grievances?

Yes, held the EAT in Wells Cathedral v Souter (available here) but not always.

Background: A discrimination claim must normally be submitted to a tribunal before the end of ‘the period of three months starting with the date of the act to which the complaint relates’ (s123(1)Equality Act 2010). However, the Tribunal can extend the time limit if the tribunal decides it is ‘just and equitable’ to do so (s123(3)Equality Act).

Facts:  Mr Souter and Ms Leishman (a married couple) were employed by Wells Cathedral School as music teachers. Ms Leishman was diagnosed with cancer and had an extended period of leave until September 2017. Ms Leishman alleged that on her return to work she was subject to discriminatory acts, including not being permitted to return to her full teaching roster and being subjected to an informal capability process in early 2018. She made a data subject access request and the relevant documents were disclosed to her in mid-March 2018.  These documents were also seen by Mr Souter at this time. He and Ms Leishman considered these documents showed that they had both been discriminated against in relation to Ms Leishman’s disability, with some acts dating back to 2016.

Ms Leishman brought an internal grievance in August 2018, with help from her solicitors. However, her grievance was not upheld and she was informed of the outcome in October 2018. Her appeal was dismissed on 21 December 2018 and she resigned on 4 January 2019. Ms Leishman completed Acas early conciliation and presented her discrimination and constructive dismissal claims on 26 April 2019.

Mr Souter was signed off work with stress from January 2018 and presented his own grievance in July 2018, again assisted by solicitors. Grievance hearings were held in February and March 2019, but the panel appointed to consider his grievance withdrew in April 2019 and it was not concluded. Mr Souter resigned on 25 April 2019. Following completion of the Acas early conciliation process, he presented his discrimination and constructive dismissal claims on 26 July 2019.

Both employees acknowledged that their claims had not been presented within three months of a number of the alleged discriminatory acts. Most of their complaints of discrimination were over a year old by the time they brought their claims. Further, the documents on which they based a number of their claims had been provided to them in mid-March 2018.

The tribunal considered whether to extend the time limit to allow their discrimination claims to proceed.

Tribunal decision

The tribunal held that it was just and equitable to extend the time limit.

In making its decision the tribunal considered the following factors which weighed against allowing the extension:

  1. Considerable delay of months or years in respect of many of the allegations.
  2. Employees aware of all the relevant facts and that they had claims by Spring/Summer 2018.
  3. Employees had received legal advice and decided not to issue a claim within the time limit.

However, the tribunal gave more weight to the following factors in favour of allowing an extension:

  1. The grievances were relevant in two ways:
    • there was a genuine desire to use the process to resolve differences (which is to be encouraged); and
    • they “crystallised” the allegations and put the employer on notice that the employees considered that their treatment had been discriminatory. Also that they had received advice, had contemplated proceedings and were pursuing internal procedures first. This allowed the employer to take steps to investigate and preserve evidence around the allegations.
  1. When considering prejudice to the employer, the tribunal took into account that it had been on notice since Summer 2018 that the employees considered they had discrimination claims. Further, there was no suggestion that the quality (or ‘cogency’) of either verbal or written evidence had been affected by the delay. Indeed, many of the allegations concerned written documents and these would not ‘dim or fade overtime’.

The employer appealed.

EAT decision

The EAT upheld the tribunal’s decision and allowed the extension of time. The tribunal had approached the issue correctly by considering all the facts and circumstances of the case and deciding on the weight of each of the relevant factors.

In respect of this particular case the tribunal was entitled to find that the pursuit of the grievance by itself was enough to justify extending time. In particular:

  • the employer did not identify any particular prejudice it would suffer due to the delay.
  • the detailed, clear and full factual context provided in the grievance (which was prepared with legal help and supported by documentary evidence) meant that the employer was fully on notice of all the allegations that it faced and that they involved alleged discriminatory treatment. Therefore there was no significant prejudice (or loss of evidence) caused by the delay.
  • there was significant overlap between the complaints made in the discrimination and the constructive dismissal claim which was due to be heard. This meant that much of the evidence would need to be considered by the tribunal in any event.

However, the EAT made clear that this will not be the same in every case and that there is no automatic extension of time where an employee raises a grievance.

Implications:  This decision is not good news for employers in that confirms it is acceptable for a tribunal to extend the time limit for a discrimination claim only on the basis that an employee is pursuing a grievance.

However, it is helpful that the EAT clarified that this will not always be the case and there is no automatic extension. In other words this decision does not give employees a blanket policy to complete an internal process, whilst their limitation period expires and then present a tribunal claim.

It is also helpful that the EAT has provided guidance on the type of facts and circumstances in which the time limit maybe extended where an employee has pursued their grievance.

In summary, if you are dealing with a grievance which is detailed or document based and the employee genuinely wants to resolve the issues, make sure you keep all evidence safe beyond the usual three month time limit. You may need them.

Case update (1): Holiday pay

What do we already know?

We updated you in our 2021 Newsletter Issue 3 Case update (4): No carry over for taken unpaid leave on the EAT’s decision in Smith v Pimlico Plumbers that claims for unpaid holiday had to be brought within three months of when the holiday should have been paid.

What’s new?

The Court of Appeal has overturned the EAT’s decision and held that workers who have taken annual holiday on an unpaid basis can carry over the right to be paid for annual leave from one holiday year to the next and be entitled to be paid it at the end of their employment.

We look at this decision in more detail below.

Summary: Are workers who are denied holiday pay, but take unpaid leave, entitled to a payment in lieu on termination where the claim would otherwise be out of time?

Yes, says the Court of Appeal in Smith v Pimlico Plumbers available here.

Background: In King v Sash Windows the CJEU held that workers denied annual leave (including a refusal to pay for it) are entitled to carry it over until termination of employment when they can claim holiday pay dating back to when they started work.

Facts: Pimlico Plumbers engaged Mr Smith as an independent contractor from 2005 to 2011. As Pimlico Plumbers did not consider that Mr Smith was a ‘worker’ he was not entitled to paid annual leave.  Mr Smith instead took unpaid annual leave.    At the end of his contract Mr Smith brought a claim for holiday pay in respect of this leave on the basis that he was, in fact, a ‘worker’.

In 2018 the Supreme Court confirmed that Mr Smith was a worker, which enabled him to pursue his holiday pay claim.

Tribunal decision

The Tribunal dismissed Mr Smith’s holiday pay claim as out of time. A claim should have been issued within three months of the (last in the series of) unpaid leave.  The King v Sash Windows CJEU decision did not entitle Mr Smith to carry over payment for annual leave from year to year.  This only applies where the opportunity to take holiday is denied and leave is not taken.

Mr Smith appealed to the EAT.

EAT decision

The EAT dismissed the appeal and agreed with the Tribunal that the CJEU’s decision in King applied only to holiday that had not already been taken. It held that Mr Smith’s claim had to be brought within three months of when he should have been paid for the holiday he had taken.

The EAT also confirmed its previous decision in Bear Scotland Ltd v Fulton and others that a gap of three months or more between deductions from pay will prevent earlier periods of holiday from forming a “series of deductions” which may otherwise allow claims for earlier deductions to be brought in time.

Court of Appeal decision

The Court of Appeal overturned the EAT’s decision and held that Mr Smith could in fact claim for his unpaid holiday throughout his total six year engagement.

The Court of Appeal looked again at King and decided that its principles apply equally where a worker takes holiday but is not paid for it. Mr Smith was therefore entitled to all unpaid annual leave accrued throughout the period of his engagement by Pimlico – amounting to £74,000 in total taken and untaken annual leave.

The Court of Appeal held that workers will only lose their right to carry over paid annual leave if they have been given the opportunity to take it. Crucially, it was ruled that the burden is on the employer to give workers the opportunity to take the annual leave, encourage them to take annual leave and inform them that if they do not use it by the end of the current leave year it will be lost.

Implications: This is not good news for employers who have misclassified staff as self-employed rather than as workers. Where such employers do not provide the right to paid holiday, they are at serious risk of claims on termination for holiday pay going back to the commencement of service. This case could lead to many more claims from gig economy workers based on their employment status given the potentially lucrative claims for unpaid holiday.

However, the good news is that it seems unlikely that this case affects employees who have taken holiday, and been paid for it, but are claiming an underpayment (for example, a failure to include overtime in holiday pay calculations). This is because the employees have taken holiday and it has been paid and therefore they have not been prevented from exercising their right to paid annual leave.

In any event, all employers should make sure that they always take steps to encourage their workers and employees to take holiday and that, if they do not, they will lose untaken holiday. If not, there is a risk that the four weeks statutory holiday entitlement will be carried over. It is also worth checking that employment contracts and policies  make it clear that employees (and workers) will use up their four weeks statutory holiday first.

This remains a notoriously complex area and if you have any holiday pay concerns please do email Menzies Law or call 0117 325 0526. 

holiday

Menzies Law Newsletter 2022 Issue 1

We’re hoping this Newsletter reaches you at the same time as some much-needed signs of Spring! After a long Winter we’re sure you are as keen to see some sunshine and colour as we are.

As you’ll know, it’s that time of year for new statutory rate increases.  We’ll update you on those in this issue, as well as our Spring Employment Law Update and legislative changes including right to work checks and the Government’s U-turn on mandatory vaccinations in care homes and health and social care settings.

In our case updates we look at a variety of cases and their implications;

Two Court of Appeal’s decisions conclude that:

  • workers are entitled to carry over taken unpaid leave and be paid for it at the end of their employment (making misclassification of workers as self-employed an expensive mistake!); and
  • an employee’s (dangerous) practical joke was not sufficiently connected to his employment for the employer to be held vicariously liable for the personal injury that it caused.

And two Employment Appeal Tribunal decisions;

  • bringing vexatious grievances can amount to gross misconduct,
  • a tribunal can extend time in a discrimination claim where the employees have waited to issue proceedings while pursuing grievances.

What we’ve been doing recently…

Apart from battling more Covid (two of the team are recovering from recent bouts), we’ve been busy delivering lots of legal training to our clients; employment law skills for managers, performance management and TUPE workshops.   We’d be happy to help on any legal training requirements you may have. Please get in touch with Lindsey ().

Also keeping us out of trouble has been a rather high volume of tribunal work.  Cases seem to be complex and often involve multiple claims and with themes including hidden disabilities and ‘constructive knowledge’, sex and race discrimination claims.  On the non-litigious side of things, Business Immigration advice has been significant in recent months with several employers needing to sponsor new employees from overseas.  There has also been a volume of Reward activity with businesses looking at everything from Equal Pay Audits to new pay structures.

Spring Employment Law Update

We’re very pleased to let you know that our Spring Employment Law Update will be on Thursday 19th May at Bristol Zoo Gardens. Those of you local to Bristol will know that after 186 years at this iconic site, the Zoo will close this year.  Its sale will help fund a new zoo at a new site, due to open in 2024.  It seems only right that we should hold our Spring event here so that we can all have one last visit before the doors close for good.

Starting at 3pm and finishing at around 7.30pm after some drinks and nibbles, the gardens will be open for any of our delegates keen to meander and clear their mind after an intense few hours of employment law.   Save the date for now and we’ll share details of content soon…

Here are all of the Government reforms and case updates we cover this month:

 

And lastly, our nothing to do with employment law bit…

Is hiring a Happiness Officer on your radar? These businesses think so…

Blog: Hidden Disabilities – the pitfalls for employers and how to avoid them

Our firm has increasingly been helping our employer clients defend disability discrimination claims in the Employment Tribunal for ‘hidden disabilities’. In this blog I discuss the risks for employers and my tips for avoiding them.  Me and my colleague Tamsin James will be expanding on this topic in our next employment law update event on May 19th.  Do come along if you can make it.

Hidden disabilities are where employees do not disclose that they had any disability at the time of the events they are complaining of.  In some cases, they had not even been diagnosed at the time with the condition they later use for their disability claim! So we refer to such cases as ‘hidden disability’ claims because of the fact that the (alleged) disability was not disclosed to the employer (at the time).

Under the Equality Act 2010, a person is classed as ‘disabled’ if they have a physical or mental impairment which has a “substantial, long-term adverse effect on their ability to carry out daily activities”.  Most mild and/or short-term medical conditions will therefore not count as a disability (e.g. the flu, a broken leg, short-term anxiety, recovering from an operation).  But any condition that does impact on basic day-to-day activities and lasts 12 months (or is likely to do so) will come within the disability definition – and sometimes this can surprise an employer.

The problem for employers

The difficulty – and growing legal risk – for employers is where they have not been told of the condition.  Either they’ve not been told about it at all or they’ve not been informed of its severity, extent and/or long-term nature.

Sometimes an employee will claim that in fact their employer did know of their condition but failed to appreciate it was a disability.  Sometimes, they will claim that their employer did not know many details of their illness but knew enough to have put the business under a duty to investigate further (e.g. ask for a medical report).

Increasingly, common ‘hidden’ disabilities are mental health issues (e.g. anxiety,  depression) or psychological problems, such as Asperger’s, autism, dyslexia and ADHD (often collectively called ‘neurodiversity’).

Deemed to know

An employer can be liable for disability discrimination if it either knew of the disability or did not directly know but ‘could reasonably have been expected to know’ from the warning signs it was aware of.   We call this having ‘constructive knowledge’ of a disability.

Either knowledge or constructive knowledge creates the risk of a potential disability discrimination claim.  Genuine and complete lack of knowledge is usually a complete defence to such a claim.

It’s worth remembering that this extends to job applicants, apprentices and contract/agency workers, as well as current employees.

Our tips for employers

Employers are expected to take ‘reasonable steps’ to find out if a worker has a disability, if they can see some warning signs.  Here are some tips that will help, based on our experience of managing such claims:

  • With every disciplinary, poor performance meeting or dismissal, ask yourself ‘could there be any mental health or neurodiversity issue here?’
  • With potential sickness warnings or dismissals, have you investigated the condition sufficiently?
  • Early intervention is a distinct advantage.  The earlier you spot a disability the better the outcomes for all
  • Familiarise yourself with the signs of neurodiversity.  The CIPD website has a very helpful paper, Neurodiversity at Work.
  • Consider taking occupational health advice (this can be confidential advice to you only, if you prefer).
  • Have good policies and practices in place – especially an up-to-date (and internally publicised) Equality policy.  Equality training is also a wise investment (we offer great Equality Diversity and Inclusion training if you need some!).
  • Consider investing in Mental Health First Aid and basic neurodiversity awareness training for all managers.

Hidden disabilities are becoming an increasing risk for employers.  We’d strongly recommend you take legal advice if you have an issue or concern.

Do you need advice about a hidden disability claim or are you concerned you may have one on the way? Please get in touch if you’d like to discuss how we can help:   / 0117 325 0526.

Luke Menzies
Director

Blog: 2022 Employment law developments

After a relatively quiet year for employment legislation in 2021, employers are likely to see several developments in 2022 alongside judgments in some key employment cases.

1. The Employment Bill – flexible working & the Good Work agenda

Many employers have put environmental, social and governance (ESG) issues higher up their agenda, if not at the heart of their business over recent years, so a number of the following possible employment law changes will be of interest:

Flexible working

The delayed Employment Bill could be published this year.  It’s expected to include a new right to request flexible working from day one of employment (a ‘day one right’). As the consultation only closed in December, we may not see legislation in 2022 but we’re likely to see details of final plans this year. Proposed reforms are relatively limited in scope but they remain part of discussions about the “new normal” working arrangements accelerated by the pandemic which will become policy for many employers going forwards.  (See here for more background on these proposals)

The Good Work Agenda

The Good Work agenda is progressed in the Employment Bill by:

  • introducing a new right for workers with variable hours to request a more ‘stable’/ ‘predictable’ contract after 26 weeks’ service
  • potentially new rights to give employees reasonable notice of a change to working hours and compensation for short-notice shift cancellation.

2. Pay and holidays

The Queen’s Platinum Jubilee this year means an extra public holiday (Friday 3 June).  The late May bank holiday has been moved to Thursday 2 June creating a four-day weekend (hooray!).

Holiday pay calculations have been less concerning for employers in recent years. However, judgement from the Supreme Court in the holiday pay case of Harpur v Brazel is anticipated this year.  This case concerns holiday pay for a casual worker who was under contract all year round but actually only worked in term-times. The judgment might clarify various holiday pay rights, including the practice of paying a holiday pay supplement to casual workers of 12.07%.

The National Living Wage (for workers aged 23 and over) rises to £9.50 an hour from April 2022.

The social care levy will be introduced UK-wide from April 2022.  This will be collected by an NI contribution rise of 1.25%.

Hospitality businesses particularly will be keeping an eye on the possible introduction of new regulations governing how tips should be distributed.

There will be the usual uplifts to statutory rates and limits (including statutory sick pay and maternity pay) in April 2022.  We’ll share these when they are available.

3. Pandemic-related developments

Government appears reluctant to impose new restrictions but we’re still anticipating plenty of employment law issues this year.

Making headlines at the moment is the Government decision to introduce mandatory vaccination for all those working in a role involving “direct contact with patients” from April 2022. Other employers may also seek to introduce mandatory vaccination, testing or NHS Covid pass policies.

The first tribunal rulings about Covid-related “health and safety” and whistleblowing cases are starting to trickle through and no doubt will gain pace in 2022.  We can also anticipate more rulings about the furlough scheme and whether an “anti-vaxxer” position is capable of being a “protected belief”.

The first cases to reach court will involve events from the early days of the pandemic, and we may see cases from the “no jab no job” policies some employers implemented (although the backlogs are so significant, 2023 may be more realistic).  We might also see some cases coming to Tribunal this year on when “long Covid” is a disability for equality law purposes.

4. Whistleblowing

The EU whistleblowing directive is finally being implemented in 2022.  Although this directive does not apply to us in the UK, it is likely to influence best practice here, particularly the Directive’s requirement to provide feedback to whistle-blowers within certain specified timescales.

5. Modern Slavery Act

The Modern Slavery Act is likely to be strengthened this year.  Plans were announced last September so when these are introduced, we’d recommend those companies affected by the current reporting requirements revisit their anti-slavery statements.

6. Diversity and inclusion

Diversity, equity and inclusion will remain high on the agenda this year.  Diversity monitoring as well as ‘positive action’ are important topics for many employers and there is often a desire to stay a step ahead of the legislation in this area.  Here are some key likely developments:

Harassment

The government has promised to introduce a new ‘proactive’ duty on employers to prevent sexual harassment in the workplace, putting the onus of responsibility on employers if employees are harassed by customers or other third parties. Again, the Employment Bill could be used for such changes. The Equality and Human Rights Commission may use this year to start a consultation process for its new Code of Practice on Harassment.  Guidance on this was published shortly before the start of the pandemic.  This would create significant change in how employers are required to manage the risks of harassment.

Legislation is also expected on non-disclosure agreements (NDAs) but has so far failed to materialise.  Again, the Employment Bill would allow for these.

Pay Transparency – Gender Pay, Ethnicity Reporting, Disability

We expect the rules governing gender pay gap (GPG) reporting to be reviewed in 2022. Change may be afoot but we’d still expect a consultation process before any alterations are made. After extended deadlines for reporting due to the pandemic, normal submission deadlines are expected to resume this year.

The introduction of Ethnicity Pay Reporting has been debated for some time now but 2022 may finally see some developments in how and when it will be introduced.   Although there is much debate about the compulsory nature of such reporting, calls for regulation continue. Voluntary reporting may in fact be the start point.

At the end of 2021, the government launched a consultation on the potential introduction of disability reporting. This will close 25 March 2022 with a published response expected in June.

Gender identity

Many of you will have been following the Maya Forstater case.  In 2021 the Employment Appeal Tribunal (EAT) ruled that a belief that sex cannot be changed is protected by equality law – as is a belief – or lack of belief – in gender identity.   2022 may see similar cases involving “gender critical” beliefs coming to the EAT in the form of Higgs v Farmor’s School and Mackereth v DWP.   Both cases highlight the difficult balance between legal regulation of those people who hold ‘protected’ gender-critical beliefs and the unlawful harassment of trans people.

Equal pay

The equal pay claims brought by store workers at Asda, Tesco, Morrisons and other large retailers continue to progress through the courts. Rulings up to this point have confirmed that female store workers can compare themselves to male distribution depot workers. Subject to any further challenges on that issue, the courts will now focus on whether the relevant types of work are of equal value and, if so, whether paying different rates for them is justified.  We would not expect these cases to conclude in 2022 but we may see further rulings as they continue their journey.

7. Family rights

By August 2022, EU member states need to have implemented new EU work-life balance directive which adds new rights for carers and working parents. Although the UK does not need to implement this directive (as a non-EU state), we have promised to match the new rights for carers.

Under the UK government’s proposals, working carers will be able to take up to 5 days’ UNPAID carers leave each year to help them with their caring responsibilities. The government published details on this in September 2021 and we expect the Employment Bill to pave the way for its introduction.

Also likely to be in the Employment Bill are 2 more government promises:

  • A new right to 12 weeks’ paid neonatal leave for parents whose babies spend time in neonatal care units
  • Improved redundancy protection for pregnant employees and maternity returners. This will give such women priority for alternative employment opportunities if they were made redundant.  Parents returning from adoption or shared parental leave will get similar protection.

8. Other developments

We may see some movement in a few other areas of employment law such as;

  • Proposals for regulating non-compete clauses following a consultation back in 2020.
  • Exclusivity clauses in employment contracts for low-paid workers may also be a possibility.
  • The Employment Bill may also enable the creation of a single enforcement body for statutory sick pay, holiday pay for vulnerable workers and the regulation of umbrella companies.  The intention is to combine the Employment Agency Standards Inspectorate, the Gangmasters and Labour Abuse Authority and HMRC’s National Minimum Wage Enforcement Team into one enforcement body.

So, 2022 could be a busy year for employment law.  As always, we’ll keep you informed of developments and their repercussions for you as an employer. In the meantime, please do get in touch if there is anything we can help you with.

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Luke Menzies, Menzies Law January 2022

 Case update (1): Worker status and substitution

Summary:  Does a courier’s ability to use an app to release their time-slot to other couriers (from the same company) provide sufficient right of substitution to defeat a claim to worker status?

No, says the Court of Appeal in Stuart Delivery Ltd v Augustine available here.

Background: The law groups staff as employees, workers or self-employed and provides different levels of protection. Employees have the most protection and the self-employed the least. Workers are in the middle and are entitled to some statutory rights, including those in relation to the national minimum wage, working hours, annual leave and protection from discrimination.

To establish worker status under s230 of the Employment Rights Act 1996 (ERA) there must be a contract for ‘personal work or service’.  This means that a promise simply to get the work done by somebody is not enough. It has to be the person contracted with. This means an ability to delegate the work to another person could be fatal to a claim of personal service.

However, to defeat a claim of worker status, the right to substitute must not be overly restrictive. How far an employer can go to restrict their staff’s right to substitution before they gain worker status, was considered by the Supreme Court in Pimlico Plumbers Ltd v Smith (see here for our update on this). In this case the plumbers engaged by the company were only permitted to appoint a substitute from a pool of colleagues. This effectively meant they could only send a substitute approved by the company.  The Court held that this restriction on the plumbers’ substitution rights went too far and the plumbers were overly restricted in their right to substitute and were therefore workers.  In summary, the “dominant feature” of the plumbers’ contracts with Pimlico was an obligation for them to perform work personally.

Facts:  Mr Augustine worked as a courier for Stuart Delivery.  His options for work were either to accept individual delivery jobs or to sign up for time slots via an app (which meant being available in a certain area and time).  However, couriers were not paid for time slots if they did not remain in the area for 90% of the time; were unavailable for more than six minutes; or refused more than one delivery.

The time slots were released on the app every Thursday. Having signed up for a slot, if a courier no longer wanted to work at that particular time, they could send a Release Notification via the app that they wished to give up the slot.  However, unless another Stuart Delivery courier offered to take up the slot, the original courier had to complete the slot or face penalties.  Approximately 10% of time slots were left unclaimed each week. A courier who failed to work two or more time slots in a week would be disqualified from receiving a delivery reward (even if they had achieved the required number of deliveries that week).

When the relationship ended, Mr Augustine claimed that he was a worker. Stuart Delivery argued that he was self-employed as he could send a substitute to work on his slot and for that reason was not obliged to perform services personally.

Tribunal and EAT decision

Mr Augustine was a worker. His right to substitute was overly restrictive and did not cancel out the requirement to provide services personally.

Stuart Delivery appealed.

Court of Appeal decision

The Court of Appeal dismissed the appeal and agreed Mr Augustine was a worker. The ‘dominant feature’ of the contract was personal service despite the right to substitute.  This was because Stuart Delivery’s working arrangements were designed to ensure that couriers worked the slots for which they had signed up. The couriers did not have freedom to choose their own substitute.  Sending a Release Notification for circulation on the app only for other couriers already working for the organisation, (who may or may not be interested in the job) was not the same as an unrestricted right to send a substitute.

However, the Court of Appeal clarified that it was not establishing a rule that limiting permission to appoint a substitute from a pool of colleagues would always lead to a finding of worker status.

Also, although the question of personal service involves looking at contractual terms, in light of Uber, the focus should be on investigating and evaluating the way in which the arrangements operate in practice (including the extent and nature of substitution).

Implications:  This case highlights how central substitution (and the freedom to do so) is to the question of worker status.  An unrestricted right to provide a substitute will likely defeat a worker status claim; but limiting the choice of substitute to a pool of colleagues will not.

However, as usual in worker status cases, there are no firm rules on this and an analysis of the day-to-day reality of the working arrangements in each case is required. If employers want to ensure their staff do not attain worker status then they need to objectively and robustly evaluate the way their arrangements with staff work in practice.  Having said that, the simple take away point here is that to engage independent, self-employed, contractors; businesses need to take a laid back approach to who delivers their services.

cycle courier