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Employment legislation update: Spring 2022

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Reducing the spread of respiratory infections, including COVID-19, in the workplace

On 1 April 2022 new guidance was published for workplaces to reduce the risk of COVID-19. It replaces the various sector specific guidance notes that had been produced in relation to ‘Working safely with COVID-19’.

In relation to employees with symptoms it directs that employers, in accordance with their legal obligations, may wish to consider how best to support and enable their workforce to follow the Government guidance which states that they should remain at home.

Suggested steps to reduce the risk are limited to encouraging vaccination; ‘let fresh air in’ and maintain a clean workplace.

It confirms that whilst the requirement for every employer to explicitly consider COVID-19 in their health and safety risk assessment has been removed. Employers may choose to continue to cover COVID-19 in their risk assessments. Employers that specifically work with COVID-19, such as laboratories, must continue to undertake a risk assessment that considers COVID-19.

Looking at it overall the guidance is much shorter than that previously published and appears to now treat COVID-19 just the same as any other respiratory disease.

People with symptoms of a respiratory infection including COVID-19

On 1 April 2022 new guidance for individuals was also published.

It advises that those with symptoms and those who have had a positive COVID-19 test result should “Try to stay at home and avoid contact with other people”

In relation to work
….”If you are unable to work from home, talk to your employer about options available to you.”

This places the onus on the employer to decide as to what reporting and pay arrangements should be put in place.

Guidance - Living safely with respiratory infections, including COVID-19”

A further guidance note also published on 1 April 2022 highlights the four steps:

  1. Get vaccinated
  2. Let fresh air in
  3. Remember the basics of good hygiene
  4. When to consider wearing a face covering or a face mask

Statutory “Fire and re-hire” Code of Practice announced

Following the news that 800 P&O staff were dismissed without consultation or notice and seemingly replaced with lower paid agency staff based overseas it was announced on 29 March 2022 that a new statutory code on the practice of ‘fire and rehire’ would be put in place.

The new code will be aimed at addressing the controversial tactics used by P&O in failing to engage in meaningful consultations with employees and offering enhanced packages to compensate.

The new Statutory Code of Practice will detail how businesses must hold fair, transparent and meaningful consultations on proposed changes to employment terms. Importantly the Code will need to be taken into account in the Employment Tribunal which will have the power to apply an uplift of up to 25% of an employee’s compensation if an employer unreasonably fails to comply with the Code where it applies.

The Code will be in addition to the guidance published by ACAS in November 2021 which suggested practical steps and advised that employers considering making changes to employment contracts should first make all reasonable attempts to reach agreement through full consultation.

The Code will have legal force in the same way as the ACAS Code of Practice on disciplinary and grievance matters.

New ‘Vento’ Bands

On 28 March 2022, the Presidents of the Employment Tribunals in England and Wales and in Scotland issued updated Presidential Guidance on employment tribunal awards for injury to feelings.

  • A lower band of £990 to £9,900 for less serious cases.
  • A middle band of £9,900 to £29,600 for cases which do not merit an award in the upper band.
  • An upper band of £29,600 to £49,300 for the most serious cases.

Amounts in excess of £49,300 can be awarded in the most exceptional cases.

NMW protection for maritime workers

On 30 March 2022 new legislation was announced that will ban ferries that do not pay their workers the National Minimum Wage (NMW) from docking at British ports. It means all ferry staff working in and out of British ports, and when in UK waters, will earn the NMW, closing a legal loophole between UK and international maritime law that P&O Ferries exploited. 

Insolvency service prosecution

On 1 April 2022 the Insolvency Service confirmed that it had commenced formal criminal and civil investigations into the circumstances surrounding the recent redundancies made by P&O Ferries.

Remote ET hearings and a new ‘road map’

A new practice note has been published listing and hearing cases in 2022/23.
It notes that there cannot be a return to the pre-2020 ‘normal’ but reliance on video will be reduced. Currently that the majority of hearings across Great Britain are still taking place on a fully remote basis, and that, in some parts of the country, over 90% of hearings are still by video.

For listing cases this year, the following guidelines shall be taken into account:

  • preliminary hearings listed in private for case management purposes will continue to default to telephone or video. This is likely to become permanent
  • preliminary hearings in public to determine a straightforward preliminary issue (e.g., time limits in an unfair dismissal case) will continue to default to video. This is likely to become permanent. Complex preliminary points requiring more detailed evidence (e.g., the application of TUPE, whether a person is disabled for Equality Act purposes, employment status) will, subject to local estate resources, make greater use of in-person hearings
  • preliminary hearings to consider an application to strike out or for a deposit order will continue to default to video. This is likely to become permanent
  • applications for interim relief will continue to default to video. This is likely to become permanent
  • judicial mediations will continue to default to video (although, in some parts of England, telephone mediation will continue). 
  • final hearings of short track claims (unpaid wages, notice, holiday pay, redundancy pay, etc) will, for the time being, continue to default to video. However, subject to local estate resources, there will be greater use of in-person hearings where the case involves significant disputed evidence
  • the form of final hearings of standard track claims (unfair dismissal) will vary. In most parts of Britain, as the physical estate recovers and requirements for social distancing are removed, the Presidents wish them to return in greater numbers to in-person, especially where the case involves significant disputed evidence. It was recognised that this will take time because recovery will not be uniform. In parts of the country where the backlog is greatest, especially in London and the Southeast, final hearings of standard track claims will continue to default to video, to enable maximum use of judges in the virtual region
  • the Presidents’ of the ET’s aim for final hearings of open track claims (discrimination and whistleblowing) to default to in-person. This is achievable in Scotland, where it will be the default approach. However, it is not achievable in all parts of England and Wales. In some locations, such as London and the Southeast, the size of the backlog demands the increase in capacity that video can deliver, including through the virtual region. In other locations, such as Wales, there is a lack of hearing rooms. For the time being, and while the Presidents continue to press for more resources, there will be greater reliance on video in such locations, including hybrid formats
  • other hearings listed specifically to deal with applications for reconsideration or costs/expenses will default to video. This is likely to become permanent.

It should be remembered that it will be open to an employment judge to decide that the default position set out in the guidance should not apply. It is also open to parties to apply to the tribunal for a different approach, which may result in a change of format or a hybrid approach in which one or more of the participants (including members of the panel) joins remotely

The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2022

24 March 2022

The Regulations revoke the "deemed incapacity" provisions entitling those self-isolating or shielding due to COVID-19 to statutory sick pay.

Spring Statement from the Chancellor

On 23 March 2022 the following measures were announced:

  • an increase to the National Insurance Primary Threshold for Class 1 NICs and the Lower Profits Limit for Class 4 NICs from 6 July 2022, aligning it with the equivalent income tax personal allowance which is set at £12,570 per annum
  • from April 2022, self-employed individuals with profits between the Small Profits Threshold (SPT) and the Lower Profit Limit will not pay Class 2 NICs, while allowing individuals to be able to continue to build National Insurance credits 
  • the Employment Allowance will be increased by £1,000 from 6 April 2022 to £5,000, which will benefit around 495,000 businesses
  • an immediate reduction in duty on diesel and petrol from 6pm on 23 March 2022, by 5 pence per litre, for 12 months.

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