KR HR & TRAINING NEWS ARCHIVE

Our overview of what you need to know about recent changes to legislation and case law, plus potential changes on the horizon. 

REMOVAL OF MANDATORY VACCINATIONS IN HEALTH AND SOCIAL CARE SETTINGS

Following its previous announcement and a period of consultation, the Department of Health and Social Care has announced that the regulations that make COVID-19 vaccination a condition of deployment for health and care staff was lifted from 15 March 2022.  In announcing the change, the Government issued a reminder to unvaccinated health and care workers of what it described as their professional responsibility to be vaccinated.  

Considerations around re-employing individuals who may have already been dismissed due to their vaccination status is covered here. 

CHANGES TO CHECKING RIGHT TO WORK IN UK

Employers are required to carry out right to work checks on all employees before they start work to ensure they have immigration permission to work in the UK.  If an employee does not have valid immigration permission, the employer may be liable to pay a penalty (of up to £20,000 per employee) unless they can prove a valid right to work check was carried out in accordance with the Home Office guidance. 

From 6 April 2022 it has become mandatory for employers to conduct (free) online right to work checks on those with a biometric residence permit, a biometric residence card or a frontier work permit.  Manual right to work checks carried out on or after 6 April will not be valid.

The temporary COVID arrangement, which has allowed employers to check scans or photographs of right to work documents (rather than originals) via video call, is due to come to an end on 30 September 2022, after which employers must follow the standard right to work check process. Since April 2022, this now includes an option for digital identity checking of British and Irish passports through approved identity checking providers (which incurs a charge to the employer). There is some frustration that the remote ID checks introduced during COVID, which gave employers a simple and free option to check ID (especially of home workers), is being withdrawn and partially replaced with a paid service. The only concession is that there is no requirement to re-do virtual checks completed during COVID.

The Home Office guidance for employers on checking right to work has been updated – information about digital right to work checks is included in Appendix D. Information about checking right to work for individuals from Ukraine is also included in Appendix F.

INCREASE TO EMPLOYMENT TRIBUNAL COMPENSATION LIMITS

With effect from 6 April 2022, the limits for certain compensation and statutory payments increased.  These limits apply to dismissals taking place on or after 6 April 2022. Two key new limits are:-

A new limit on a week’s pay for the purpose of calculating statutory redundancy payments and basic awards – £571 (up from £544) and

A new limit on the amount of compensatory award for unfair dismissal – £93,878 (up from £89,493).

INCREASES TO MINIMUM WAGE (FROM APRIL 2022)

National Living Wage (for adults aged 23 plus) £9.50

21-22 Year Old Rate – £9.18

18-20 Year Old Rate – £6.83

16-17 Year Old Rate – £4.81

Apprentice Rate – £4.81

Real Living Wage – £9.90 (across the UK, £11.05 in London). This is the wage rate determined by the Living Wage Foundation based on what people need to live (voluntary not statutory).

Further information on changes to statutory payments (such as maternity pay, sick pay), can be found here. 

PPE TO BE PROVIDED TO WORKERS

From 6 April 2022, the Personal Protective Equipment at Work (Amendment) Regulations 2022 come into force and amend the 1992 Regulations. Under the new rules, employers will be required to provide suitable free personal protective equipment to workers as well as employees where there is a health and safety risk. In addition, if PPE is required, employers must ensure their workers have sufficient information, instruction and training on the use of PPE.

Employers who engage workers should review and revise their existing policies on PPE. Further guidance (including definition of “worker”) is available on HSE website.

In addition to the above, there is potential for the following changes to be introduced at a later date…

WORKPLACE SEXUAL HARASSMENT

The Government will introduce a duty on employers to prevent sexual harassment and new protections from third party harassment.  The date when this is to be introduced has yet to be confirmed but it is anticipated in 2022. 

A new statutory code of practice will be published to support the duty to prevent sexual harassment along with guidance for employers. 

This will cover 7 key points. Employers must:

1. Develop effective anti harassment policy
2. Engage with employees
3. Assess risks and mitigate in workplace
4. Use reporting system to raise concerns anonymously
5. Train up staff
6. Act immediately and appropriately if they receive a complaint of harassment
7. Treat third party harassment as seriously as a colleague complaint

Employers need to be clear as to what behaviour is expected of employees and that they have a zero tolerance.  

FLEXIBLE WORKING CONSULTATION

The government is consulting on the following potential changes:

• Making flexible working a day one right (currently employees need 26 weeks’ service to make a statutory request for flexible working)
• Shortening the 3-month period that employers have to respond to a flexible working request
• Requiring employers to consider alternatives if they cannot accommodate a request. 

In practice, we are already seeing increases in flexibility from the outset as employers compete for talent in a competitive market.

EMPLOYMENT LAW BILL

The following changes are anticipated, but there is not a clear timeline for when this may be introduced…

• The establishment of a new single enforcement body for employment rights
• The extension of redundancy protection to six months post return to work after the end of maternity leave, with similar protection afforded to those returning to work from adoption and share parental leave
• Neonatal leave and pay.  For every week in care the parents will receive pay up to a maximum of 12 weeks.
• A new right to 1 week’s unpaid leave per year for carers
• New legislation making it compulsory for businesses in the hospitality services and leisure sectors to pass on all tips to staff.
• A new right for workers to request a more stable contract after 26 weeks service.  Based around zero hours contract.  Protection such as this gives employment status to workers. 
• Enhance flexible working rights
• An extension of time required to break a period of continuous service from 1 week to four weeks.
• New legislation making it compulsory for organisations to publish their modern slavery statements on a new Government-run registry.

WHISTLEBLOWING

The EU are reviewing whistleblowing legislation.  Although EU directive doesn’t apply to us any longer the government has confirmed that it is currently reviewing whistleblowing protection for the UK.  The UK may choose to align our legislation with the EU as some businesses have European and global arms. 

This would see the widening protection to a broader range of people such as volunteers non executive directors, and job applicants.

This would also require employers with 50 plus employees to set up internal channels procedures and provide feedback for whistleblowing.

New regulatory standards would be introduced such as how regulators receive whistleblowing disclosures, maintain confidentiality, provide feedback and follow up on any disclosures.

There may also be provisions to protect whistleblowers from potential liability, such as breach of confidence, defamation, data protect or copyright law.

RETIREMENT DISCUSSIONS

A recent case involving ASDA and an employee with dementia has highlighted the risks around even well-meaning discussions about when someone plans to give up work. 

Although age discrimination has, by and large, been outlawed since 2006, it was only in 2011 that employers were prevented from retiring people because they had reached a certain age (albeit with some limited exceptions).

Mrs Hutchinson had been employed by ASDA as a shop floor assistant for 20 years. When she was in her early 70s, she started to exhibit symptoms of dementia. Over time, Mrs Hutchinson acknowledged her symptoms were getting more severe and her colleagues also noticed that she was getting more forgetful.

There then followed various discussions with her about her condition, during which time retirement was suggested as an option on more than one occasion.

Eventually, having brought an unsuccessful grievance for bullying and harassment due to her age and disability, she resigned and brought claims against the supermarket including for age and disability discrimination.

The employment tribunal found that, following a deterioration in Mrs Hutchinson’s health, managers had suggested retirement as an option with her on numerous occasions. 

The tribunal accepted that the managers’ actions were well-meaning – there were numerous instances detailed which demonstrated that her managers had tried to be supportive – but by raising the option of retirement with Mrs Hutchinson, ASDA had unlawfully discriminated against her on the grounds of age.

The tribunal ruled that the managers would not have raised this as an option for someone not of retirement age.

A third of all workers in the UK are over 50, and this number is estimated to grow. This creates a challenge for employers around approaching succession planning whilst not falling foul of discrimination legislation.