Monthly Archives: December 2021

Employment Law Changes in 2022

There are a number of employment law changes in 2022 which employers need to consider.

National Minimum Wage Increase

From 1 April 2022 the national minimum wage hourly rates increase to:

£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, and
£4.30 to £4.81 for apprentices under 19, or over 19 and in the first year of the apprenticeship.

Employers should write to employees to confirm the change.

Increase in Family Friendly Rates

From 3 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.

Increase in Statutory Sick Pay

The rate for statutory sick pay will also rise on 6 April 2022. The new rate will be £99.35, up from £96.35.

Increase in Redundancy Pay Rates

From 6 April 2022 the maximum weekly statutory redundancy payment rate rises to £544 per week. This rate applies to employees with at least two years service.

Right to Work Checks

From 6 April 2022 employers will have to undertake right to work checks on a face to face basis. Currently checks may be carried out remotely and were introduced so that UK based employers could recruit employees more easily from overseas.

Increase in bank holiday entitlement

To celebrate the Queen’s platinum jubilee an additional bank holiday is being awarded on Friday 3 June 2022. The late May bank holiday is being moved to 2 June.

Depending on the wording of the employment contract an employer may contractually not be obliged to provide employees with the extra bank holiday. However, they may consider doing so as a goodwill gesture and to ensur morale.

There are other possible changes on the horizon which the government is proposing to introduce. These may take place in 2022.

Extension to redundancy provisions

In order to prevent pregnancy/maternity discrimination in redundancy the government intends to extend the protection a woman receives on return from maternity leave for up to six months whereby they are automatically offered a vacant position to prevent redundancy. However, the woman must have the skills to undertake the role. They currently do have a right to be offered a vacant role if they have the skills if redundancy to avoid redundancy whilst on maternity leave.

Extended leave for neonatal care

Following consultation the government published a response in March 2020 confirming that parents of babies that are admitted into hospital as a neonate (28 days old or fewer) will be eligible for neonatal leave and pay if the admission lasts for a continuous period of seven days or more. They will be entitled to this from day one of their employment and up to a maximum of 12 weeks. More details will need to be published.

Carers Leave

Carers will be given the right to one weeks unpaid leave. The details have yet to be published.

Flexible Working

The government is proposing to introduce flexible working as the default setting unless an employer can justify otherwise. The details have yet to be published.

Sexual Harassment

A new duty will be placed on employers to prevent sexual harassment and third party harassment. The details have yet to be published.

Dismissing Staff with Less Than Two Years Service

I am often asked by clients about dismissing a member of staff with less than two years service. It is good to check as whilst this may seem relatively straightforward there are a few things to bear in mind before proceeding. Caution is recommended along with the necessity for an employer to show reasonableness.

Under two years service an employee does not have the right to claim unfair dismissal. This may lead an employer to think they are protected from an employment tribunal claim. However, this is not necessarily so depending on the circumstances that have lead the employer to consider dismissal after a short period of service.

Often the employee has not performed particularly well since starting employment. As a cost is usually attached to recruitment a wise employer should put in place a structured probation monitoring period where regular documented meetings take place to discuss with the employee progress that is being made and whether any support and/or training is required. This shows investment in the new employee and can boost their morale encouraging good performance. If an employer ignores this due process, as many do, it can lead to under performance that may impact detrimentally on the business including colleagues.

In my experience some employers can ignore the situation hoping things will get better until they consider enough is enough. It the situation is allowed to drift on until almost two years is up the period of notice needs to be considered which may launch the situation into a possible unfair dismissal situation if not carried out properly.

It is always best to tackle poor performance in a probation period as quickly as possible and not ignore the situation. The reason for the underlying under-performance should be considered. It may be that a disability is impacting on the situation which needs to be tackled very carefully looking at ways things can be improved via reasonable adjustments. An early discussion with the employee is recommended and consideration to an occupational health advisor may be needed.

For poor performance that is tackled early and where there is no improvement it should be possible to invite the employee to a meeting to discuss their under performance and the need to dismiss them from their employment. Whilst there not be a need to put a formal structured process in place as is required if the employee has over two years service best practice would be to send a meeting invite letter and give the right to be accompanied by a trade union representative or a work colleague.

At the meeting iIf documented meetings have taken place during the probation period these can be referred to. The meeting should be followed up in writing confirming the outcome should dismissal be required, giving details about the termination including P45 provision. I usually recommend that the employee is given the right to appeal.

Under performance or capability is a fair reason for dismissal. Other reasons may include conduct, redundancy, breach of statutory provision or some other substantial reason.

In certain circumstances the dismissal may be classed as automatically unfair. This can include reasons related to pregnancy/maternity, asserting a statutory right such as taking annual leave or the right to the minimum wage, health and safety concerns, whistleblowing and any form of discrimination, If an employee is dismissed due to a protected characteristic which include include age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation as detailed in the Equality Act 2010 this is automatically unlawful.

In any case the decision to dimiss should not be taken lightly and every effort should be made to try and get the employee up to speed as quickly as possible and certainly not leave it until almost their two years of service is up.

Additional information on dismissing staff with under two years service can be found at https://www.acas.org.uk/dismissals

http://sjbealehrconsult.co.uk/performance_management.htm

The New COVID variant Omicron – what’s an Employer to do?

In recent weeks a new variant of COVID has begun to emerge. The race is on to get everyone jabbed and issued with a booster in order to try and stop the spread of the new COVID variant, Omicron, as well as previous versions of COVID. A few days ago WHO gave an update on Omicron https://www.who.int/news/item/28-11-2021-update-on-omicron

From Tuesday 30 November 2021 face coverings are once again mandatory in shops and on public transport. This is to try and halt the spread of the virus. It seems however that certain shops are not going to enforce the rule – namely the Coop – https://www.bbc.co.uk/news/business-59481287, Tesco and Lidl as they do not see it is their role as a law enforcer. Face coverings must also be worn by students in year 7 and above along with staff in communal areas unless they are exempt.

Countries are once again being put on the red list. Malawi, Mozambique, Zambia and Angola were added to the red travel list, which now already includes South Africa, Botswana, Lesotho, Eswatini, Zimbabwe and Namibia.

Anyone travelling internationally will need to take a PCR test on or before day two after their return to the UK, including those who are fully vaccinated. They must self-isolate until they have a negative test result. Lateral flow tests will not be accepted as an alternative.

Anyone who is a contact of a person who has tested positive with a suspected case of the Omicron is required to self-isolate for ten days. This includes those who are fully vaccinated.

More information can be found here : https://www.gov.uk/coronavirus

The government is throwing everything at the situation to ensure everyone can have a third jab and all adults will have been offered one by the end of January 2022.

Actions for Employers With the New COVID Variant

Employers need to consider health and safety as under the Health and Safety at Work Act 1974, employers are required to take all reasonably practicable steps to reduce workplace risks and employees have a legal duty to co-operate. A review of health and safety obligations should be undertaken by carrying out risk assessments to try and reduce the spread of the virus. Staff and visitors should be reminded to be vigilant and their obligations too.

Employees may need to be encouraged to work from home where possible building on emerging hybrid working practices. For those employees who can not work at home face coverings should be required and PPE provided where necessary. At the moment working from home is not being enforced by the government however it might be prudent for employers to issue guidance on the matter to the their employees. Support for staff both psychologically and physically should be also offered.

International travel for business purposes may have to be curtailed especially where a country is on the red list.

Sadly it seems that the new variant may affect 2021 Christmas parties. Usually a time to have fun for some employees now it may be causing anxiety. Many pubs and restaurants are suffering from cancellations in the wake of the emerging news. Once again the hospitality industry could be be hit hard and will impact on staff. It seems the big company party is off and employers are choosing to hold much smaller events – https://www.bbc.co.uk/news/business-59492569

The cases of Omicron are gradually increasing it seems. It is not known how quickly the virus will spread or how serious its impact will be. Even if someone who has been double vaccinated can get the Omnicron virus and transmit it. Testing and self isolation should be firmly encouraged.

The message should continue to be “stay safe”.

The Office Christmas Party – Tips to Ensure Good Conduct

The TV is full of Christmas adverts so the Christmas season is fast approaching along with the anticipation of the associated festivities. Many companies like to put on a Christmas party for their hard working staff, but with that there comes responsibilities on both sides. 2021 is especially sensitive due to COVID restrictions.

Christmas parties generally have a positive impact on moral and team spirit and it an opportunity for an employer to thank employees for all their hard work. However the boundaries need to be set by the employer to avoid any future problems. UK legislation is clear, the office party is an extension of the normal work environment if is held at a separate venue or outside of working hours. Employers can be held responsible for employee actions so need to avoid discrimination and health and safety claims so need to have procedures in place. Companies need to make sure they make it clear to staff what is and what is not acceptable behaviour at social events and follow up any failure to comply with this order with disciplinary action. Employers may be liable for the discriminatory behaviour of their employees and ultimately face significant tribunal claims if they are found vicariously liable. Employees can be disciplined for any breaches of disciplinary rules, including dismissal for gross misconduct, following unacceptable behaviour at the Christmas party. Therefore, having clear HR procedures in place that are well communicated with training provided are essential.

Companies need to ensure managers are careful not to let their guard down being sociable or allowing alcohol to loosen their tongue and discussing issues such as promotions or pay rises in the informal setting of the Christmas party. It is important to carry out a risk assessment of the Christmas party venue, considering any particular risks posed to any disabled employees. It might be a good idea to limit the free bar, if one is planned and, in any case, encourage responsible drinking. Companies may be liable for the welfare of employees if they suffer alcohol-induced accidents. Consider organising transport home with designated non-drinkers as drivers or paid for coaches/mini buses.

If there is a ‘Secret Santa’ taking place, make sure staff know the boundaries confirming that racist or adult gifts, which might offend, are not acceptable. A decision needs to be taken to what extent employers will be lenient with staff on the day after the party, if it is a working day, provide clear information on employee requirements beforehand. Health and safety should be of utmost importance. Employees should not be expected to operate machinery if not fit to do so. Also the safety of employees driving to work after having had transport home the night before should be considered. Take these reasonable steps to prevent inappropriate behaviour then employees must take their own responsibility for their actions. In any case it might be a good idea to produce guidelines for employee behaviour at the company party.

ACAS provides some extra guidance on this subject – https://www.linkedin.com/pulse/acas-christmas-parties-andrew-hennessy/

Hopefully nothing untoward or serious will happen and all employees will have a good time.