Spring 2022 - Employment law update for employers

April is usually the month when the Government introduces new employment legislation, and in recent years has announced its commitment to introducing significant new rights, such as neo-natal leave and a duty to prevent sexual harassment in the workplace.

‘While there are very few big changes this April, employment law remains a fast-moving area of law,’ says Kalpesh Nakeshree, Head of Employment Law with Ware & Kay Solicitors.

He explains the key changes employers need to know about this year and looks back at recent developments.

Closure of the Statutory Sick Pay (SSP) rebate scheme

Employers are no longer able to claim back SSP for coronavirus-related absences or periods of self-isolation after 17 March 2022. The usual SSP rules now apply with employees being entitled to SSP from the fourth qualifying day of absence.

Repeal of mandatory vaccination requirement

On 15 March 2022, the Government revoked the requirement for frontline health and social care staff and staff entering a care home to be fully vaccinated against coronavirus.

1 April 2022 - Increases in the national minimum wage

• increase in the national living wage for workers aged 23 or over from £8.91 to £9.50 per hour;
• increase in the national minimum wage for workers aged at least 21 but under 23 from £8.36 to £9.18 per hour;
• increase in the national minimum wage for workers aged at least 18 but under 21 from £6.56 to £6.83 per hour;
• increase in the national minimum wage for workers aged 16 to 17 from £4.62 to £4.81 per hour;
• increase in the apprentice rate from £4.30 to £4.81 per hour; and
• increase in the accommodation offset from £8.36 to £8.70 per day.

3 April 2022 - Increase in family-related statutory pay

The rates of statutory maternity pay, statutory paternity pay, statutory adoption pay, statutory shared parental pay and statutory parental bereavement pay increase from £151.97 to £156.66 per week.

6 April 2022 - Increase in statutory sick pay

The rate of statutory sick pay increases from £95.85 to £99.35 per week.

6 April 2022 - Increase in a week’s pay for calculating redundancy payment

The maximum amount of a week's pay for the purpose of calculating a statutory redundancy payment increases from £544 to £571.

6 April 2022 - Lower earnings limit for national insurance contributions

The lower earnings limit for the purpose of calculating primary Class 1 national insurance contributions increases from £120 to £123 per week.

6 April 2022 - Health and social care levy introduced

This new tax will be payable from 6 April 2023. For the tax year 2022/2023, the health and social care levy takes the form of an increase in national insurance contributions.

6 April 2022 - Portable flexi-job apprenticeships

The introduction of a pilot scheme in the creative, digital and construction sectors will allow apprentices to enter a series of arrangements of at least three months' duration with separate employers, rather than committing to the usual 12 months.

6 April 2022 - Digital right to work check system

Employers can use government-certified identification document validation technology (IDVT) to check the right to work of UK and Irish citizens who hold a valid passport.

30 September 2022 - End to adjusted right to work check measures

In response to the pandemic, employers could carry out right to work checks by video call and accept scans and photos of documents, rather than the originals. Employers can continue to use these adjusted measures until 30 September 2022, (not 5 April 2022 as previously announced).

Recent notable employment law cases

Holiday pay for wrongly classified workers

Workers who are wrongly labelled as self-employed contractors miss out on holiday pay and may bring claims for backpay. Last summer we reported on the decision of the Employment Appeal Tribunal in Pimlico Plumbers v Smith [2020], which denied Mr Smith backpay for untaken holiday because he had not been deterred from taking some time off, even though it was unpaid. This year, the Court of Appeal agreed with Mr Smith that he could still recover backpay for his untaken holiday which accrued while working for the company, even though he did take some time off.

Employer not liable for workplace prank

An employee’s practical joke of detonating an explosive pellet next to a contractor’s ear damaged the contractor’s hearing, amongst other injuries. The contractor sued the practical joker’s employer for damages. In Chell v Tarmac Cement & Lime Ltd [2022], the Court of Appeal found that there was not enough of a connection between the prank and the employee’s job to make it fair for the employer to be liable to the contractor for his injuries. The Court of Appeal took into account a number of factors, including that the employee’s work did not involve the use of pellets and that the employer did not authorise its employee’s wrongdoing. It is good practice to have clear site rules warning about inappropriate behaviour and reckless use of equipment.

Agency workers’ rights

Agency workers have the right to be notified of vacancies with the hirer, but this does not go so far as to give agency workers the right to apply for the posts, according to the Court of Appeal in Kocur v Angarad Staffing Solutions Ltd [2022]. Mr Kocur had challenged the Royal Mail’s practice of allowing directly employed staff to apply for vacancies before agency staff could apply. The Court of Appeal found the practice was lawful.

Health and safety protection for workers

The scope of laws protecting employees from detriment for health and safety reasons, has been extended to protect workers, not just employees.

How we can help

If you need help with assessing the risk that your contractors may in fact have claims for holiday pay or with any of the issues raised in this article, please contact Kalpesh Nakeshree in the employment team on York 01904 716000, Wetherby 01937 583210 or Malton 01653 692247 or email kalpesh.nakeshree@warekay.co.uk.