Minimum Wage increases – National Minimum Wage and National Living Wage

From 1st April 2022 organisations must comply with the National Minimum Wage increases. The hourly rate of the minimum wage increases 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, and
£4.30 to £4.81 for apprentices under 19, or over 19 and in the first year of the apprenticeship.

It is essential that employers check their pay rates against the forthcoming minimum wage rates and ensuring where necessary they increase remuneration for the first pay reference period that is beginning 1st April 2022.

If employers do not pay in accordance with National Minimum Wage or National Living wage, employers can be fined a minimum of 4 weeks salary in addition to the difference if the National Minimum Wage or National Living Wage is incorrect. Also, the Government publish a ‘name and shame list’ of businesses that have failed to pay National Minimum Wage or National Living Wage.

Proposed Statutory Increase to Family Friendly related pay and Sick Pay

The rate for statutory maternity, adoption, paternity, shared parental bereavement pay has been proposed to increase from £151.97 up to £156.66. In addition, it is expected that SSP will also increase to £99.35. These increases are due to take place in April 2022.

UK Right to Work Checks

The Government announced back in March 2020, temporary changes to UK Right to Work checks, allowing employers to conduct checks without seeing the individuals face to face. This means that checks can be carried out via video and scanned or photo versions of the original UK Right to Work documents.
These temporary changes are due to last only until 5 April 2022 and employers must revert to in person checks. Look out for further changes regarding new guidance on the UK Right to Work checks from the 6 April 2022. It is possible that the temporary guidance maybe extended.

It is a legal requirement to carry out UK Right to Work checks under the Immigration, Asylum and Nationality Act 2006. Failure to collect employees UK Right to Work can result in a £20,000 per employee fine and even imprisonment.

Changes to Statutory Redundancy Pay

It is proposed that new limits on employment statutory redundancy pay will come into force on the 6 April 2022. Employers that terminate employees for the reason of redundancy must pay those with two years’ service or more an amount based on the employees weekly pay, length of service and age. The new amount will be confirmed in the draft Employment Rights Order 2022, which will be published some time in February. For termination due to redundancy the payments must be calculated on the new maximum amounts for redundancies on or after the 6 April 2022.

It is essential that the correct redundancy payment is calculated, this must include any holiday that may have been accrued up to the date of termination.

Check out the Gov.uk calculator which helps employers work out the correct Statutory Redundancy payment for employees.

Managing the Bank Holiday Entitlement during the Platinum Jubilee

Friday 3 June 2022 has been announced as an additional Bank Holiday to celebrate to Queens Jubilee. In addition, the late May Bank Holiday has been moved to Thursday 2 June 2022.
This may cause confusion for employers and will need to be planned in advance. It will largely depend on how employment contracts are worded, even if the employer is not contractually obliged to grant an extra day annual leave, employers may choose to do so as a gesture of goodwill to employees.

Potential changes to Flexible Working Requests

In current legislation, to apply for flexible working you must have worked for your employer for at least 26 weeks before making a request for flexible working arrangements. A proposal is in place to allow employees to apply for flexible working from day one of their employment as opposed to waiting until at least 26 weeks. The Government says it will give 2.2 million people more access to different working arrangements, helping support work life balance.

Carers Leave

Carer’s leave to be introduced as soon as parliamentary time allows. This allows employees with caring responsibilities to take up to one week (5 working days) of unpaid leave per year from day 1 of employment.

SSP Rebate Scheme (SSPRS) makes a return

The SSP Rebate Scheme, which reimbursed employers for the sick pay paid to employees due to Covid-19, has been reinstated.
The Scheme was created in April 2020 to assist employers with the rising cost of sick pay as employees took time off work because they had Covid, or they were self-isolating.

Eligible employers were able to claim back Covid related Statutory Sick Pay (SSP), up to 2 weeks per person, for any absences which fell before 1 October 2021. Paying SSP is a legal requirement provided that the employee meets certain criteria. At the start of the pandemic, SSP laws were extended to include those who were self-isolating, in addition to those who were sick. Because of this, employers found that they were paying substantially more SSP to employees than before.

The Scheme enabled employers with fewer than 250 employees, counted at 28 February 2020, to claim back Covid related SSP to a maximum of 2 weeks per person. The Scheme was closed on 30 September 2021 – the same day the Job Retention Scheme (furlough scheme) was closed – due to the UK being in a better place in terms of Covid cases.

However, the emergence of the Omicron variant has seen an increase in cases and therefore an increase in time off from work due to either sickness or self-isolation.

To help employers meet this extra cost, the Scheme re-opened today (21 December 2021) for eligible businesses across the UK however claims cannot be made until mid-January 2022, when they can be made retrospectively. Employers should ensure they carefully record absence, reasons for absence and accompanying evidence in order to be able to make an accurate claim.
The monkeypox virus may have emerged in the UK, but experts have said it is “not another Covid” and have urged employers to follow official guidance.

The World Health Organisation (WHO) found the symptoms for most people have been mild, only causing severe illness in some cases such as young children, pregnant women, and individuals who are immunocompromised.

If someone is infected with monkeypox, it usually takes between 5 and 21 days for the first symptoms to appear. These include a high temperature, a headache, muscle aches, backache, swollen glands, shivering (chills) and exhaustion.

In the early stages, a rash (which can be confused with chickenpox) often begins on the face, then spreads to other parts of the body.
Confirmed cases should be treated under normal sickness rules.

However, issues could arise where an employee is advised to self-isolate. Where possible, if employees can work from home then that should be the solution, however we are back to that issue of sick pay if an employee cannot work remotely.

The rule is statutory sick pay will not be payable for the isolation period unless the employee gets too ill to work during it. This is similar to the current Covid isolation position. The isolation period is 21 days. Employers will have to decide whether they will require close contacts with a confirmed case to not come to work for the 21 days or whether they will still require them to come in.

The situation is different in instances where an employer asks someone who has been in close contact with a confirmed case to stay away from the workplace. In this scenario, failing to provide full pay could lead to claims of unlawful deduction from wages, as it is the employer refusing to allow the employee to work.

So what is best practice? Support workers required to self-isolate or quarantine, and if you can, cover the cost of quarantine. Due to concerns about pay, employees may come into the workplace when they should not.

Alongside enabling workers to work from home and making reasonable adjustments for quarantined workers, you should protect workers from reprisals when reporting potential cases of illness or incidents, such as exposure to the disease.
In the past few months’ sickness absence has become a real problem for a number of my clients.

The reasons vary from long-term sickness absences – are they ever going to return to newly-diagnosed illnesses, such as long COVID - what reasonable adjustments do you need to make, to those having many sporadic days off – are they just taking the Michael?

Client no 1 – just employed a new lady and after 2 weeks in the job advised she was pregnant and presented a fit note for the full term of her pregnancy, stating light duties. I advised my client to consider whether light duties were a possibility, which it was however, it may not always be possible to offer light duties, so the employer would have no option but to place the employee on sick leave.

Client no 2 - a prolific short term absence issue, a third of the workforce (in my view taking the Mick). I reviewed the trigger point system they were using and we have changed this now to the Bradford Score and introduced a new managing sickness and capability policy. They currently have a large number of disciplinary meetings lined up!

Client number 3 - an employee stating various medical issues which have been on-going. They asked for a reduction in hours, which the client agreed to. It didn’t make a difference, sickness absences continued. In these instances you can request a GP’s report and/or an Occupational Health report on this employee to understand more about the medical issues, prognosis and any reasonable adjustments.

An employee does have to give their consent though, but it looks very suspicious if they don’t. Refusal to consent can mean that an employer can make a decision without the benefit of a medical report.

It can take up to 6 weeks to get the GP’s report, and then it may not give much useful information.

Another good tool is to use Occupational Health. These are medical professionals who will do a telephone conversation or a face to face visit with the person in question to work out if they are able to do their job and what reasonable adjustments should/could be made.

One report came back that the employee was not going to be capable of returning to their job and as there were no reasonable alternatives, they were dismissed on medical capability grounds.

Another option is to consider having a without prejudice conversation and offer a settlement agreement if an employee is not going to return because they simply can’t face it. So even though you can’t sack them for being sick, you could consider this as an option.
If there is a Pay in Lieu of Notice (PILON) clause within the contract, the employer can terminate the contract and make payment that represents the money that would have been paid during the notice period.

If there is no PILON clause, then doing this without the employee's agreement would amount to a breach of contract, and hence could lead to a claim of wrongful dismissal. However, if you have paid the employee for the notice period, the employee would actually gain no more money by bringing such a claim. Even so, you should be aware that any dismissal that breaches the contract will mean that post-termination restrictions (eg a restrictive covenant) would not apply.
The short answer is no. It remains your decision if you are going to permit your staff to work from home, regardless of the coronavirus pandemic. In England, provided your workplace is 'COVID-secure', you are able to ask staff to return to the workplace and can even treat their refusal as a conduct issue if it is not reasonable. That said, you should take care in this situation. If staff are able to fully conduct their role from home, permitting them to continue doing so may help you to maintain social distancing in the workplace. You will also need to fully demonstrate, as part of the request procedure, why business need will not permit them to stay at home.
Organisations are urged to keep an “open dialogue” with their staff and respect their concerns about returning to the office after the government announced the remaining coronavirus rules in England will end later this week.

Boris Johnson announced yesterday that all legal restrictions on Covid will come to an end in England on Thursday (24 February), meaning that individuals who test positive for Covid-19 will no longer be legally required to self-isolate.

Individuals who test positive will, for now, still be advised to stay at home for at least five days. However, from 1 April that guidance will also end and instead people with Covid symptoms will be asked to “exercise personal responsibility”.

As part of his ‘Living with Covid’ plan, the prime minister also announced an end to several support packages that were put in place to help individuals self isolate.

The £500 payment for those on low incomes who test positive for Covid-19 will be scrapped from Thursday, along with routine contact tracing, and workers will no longer be required to tell their employers if they have to self-isolate.

From 24 March, employees with Covid will also no longer be eligible for statutory sick pay (SSP) from day-one of their illness – with SSP only being paid on the fourth consecutive day of illness.

And the government will no longer provide universal free testing in England from 1 April. From this date employers will also no longer have to explicitly consider Covid in their risk assessments.

When deciding what rules and guidance to put in place, employers need to be led by the principles of what is fair and reasonable to ask, respecting that many people with vulnerabilities will still be very concerned about coming into places of work.
Firms should continue existing practices to keep workplaces safe, including maintaining good ventilation, cleaning and sanitation.

While many firms will want to continue to ask individuals with Covid to stay at home after the guidance changes, businesses will need a sound business case to explain very clearly why a Covid isolation policy is needed, i.e. to protect vulnerable staff or clients.

Employers will also need to decide whether they want to make testing a requirement going forward – and if so, whether they will provide testing kits to staff – and consider how the changing rules around SSP might affect their business

While the end of the extended SSP scheme for individuals who test positive for Covid could mean lower costs for employers, the end of the SSP Rebate Scheme for smaller employers will also mean some firms will see their SSP bill go up, he said.

Employers should carry out a risk assessment of its offices to identify any specific risk to infection and transmission in that workspace and then take steps to reduce those risks - employers should also consult with individuals reluctant to return to the office.

International Women’s Day, one of the world’s biggest employee engagement days, takes place on 8 March 2022. It is a global opportunity to celebrate and acknowledge the achievements of women across the world.

#BreakThe Bias
This year, the theme for the day is focused around #breakthebias. The International Women’s Day Website states that, “Whether deliberate or unconscious, bias makes it difficult for women to move ahead. Knowing that bias exists isn’t enough. Action is needed to level the playing field.”


(internationalwomensday.com)
Under ss 44 and 100 of the Employment Rights Act 1996 (ERA 1996), employees are protected from being subjected to a detriment or being dismissed for exercising their right to leave their workplace. To gain such protection, employees must have a ‘reasonable belief’ that their workplace poses a serious or imminent threat to them or to others which they could not reasonably have been expected to avert, and they left and refused to return to work while the danger persisted.

This will be much harder now with vaccinations and a reduced prevalence of the virus.

Where an employee or worker has genuine concerns, you should listen to them and try to accommodate them where possible. Don't rush into disciplinary action or dismissal.

Make a well informed decision - if you have followed all government guidelines and ensured the risk is minimised for employees, but they still refuse to return, then the business needs to be prepared to conclude a staff member doesn’t have reasonable grounds.

Employers can force people to return to work following the lifting of Covid-19 restrictions if they are contractually obliged to work from a particular location.

Ultimately it could end in the disciplinary action for unreasonable refusal or failure to follow a reasonable management instruction. If they are refusing on the grounds of serious underlying health conditions, then disciplinary action would be risky. If the employee has no reasonable grounds then you can start disciplinary proceedings which could lead to dismissal.