March 2022 Newsletter
I appreciate there are now greater concerns world-wide, but you’ve probably had as much as you can take in terms of existential misery, none more so than the poor and brave Ukrainians. So, we’ll concentrate on employment law and pretend for just a moment that everything is ‘normal’.
That said, a YouGov survey published last week found that two fifths of staff say they will never return to the office following the Covid crisis! I tend to avoid exclamation marks unless absolutely necessary, but I believe this statistic certainly merits one. To hammer the point home, 71% of staff say they prefer working from home. It’s not unusual for me to be in the minority and the populations thoughts on working from home only go to confirm this. I quite enjoyed the first few months of lockdown – it was a novelty – but I soon began to miss speaking to people ‘live’ as it were. And I feared for people who were isolated from other human contact, or important professional contact – e.g., junior staff who need to be around seniors for professional growth and in order to learn. However, these statistics would seem to suggest my fears were unwarranted. The challenge for employers will be in encouraging staff back to work (hybrid arrangements seem to be a popular half-way house) both for the sake of their business and national economy reasons. After all, many thousands of businesses rely on people travelling to work – from transport through to sandwich and coffee sellers.
In this month’s update we look at the continuing farrago of compulsory vaccines in the health/care sector. Louis Howlett considers a couple of recent reported cases concerning disciplinary and grievance procedures. Laura Kelleher looks at what employers should expect in 2022 in terms of legislation and Laurence Dunn considers an extraordinary decision that, on the face of it, puts in doubt the tactic of ‘fire and re-hire’ where contract changes can’t be agreed.
Agency workers and the right to be informed of vacancies
The Court of Appeal has recently provided a judgement on the interpretation of the Agency Workers Regulations 2010 (‘AWR 2010’) in the context of the extent to which agency workers should be informed of vacancies by the business where they are working.
The case is interesting on a standalone basis, but it also gives us the opportunity to draw attention to the rights of agency workers, which many employers may not be aware of.
The Beginning of the End? Implications of the Ending of COVID-19 Restrictions
As has been widely reported, the COVID restrictions in England will be progressively removed between 24th February 2022 and 1st April 2022, following the Government’s new guidance “COVID-19 Response: Living With COVID-19”. In this article, we look at some of the considerations that employers will need to take into account because of these changes.
Firstly, here is a summary timetable of the changes in England:
From 24th February 2022:
- The legal duty to self-isolate ended. The guidance remains that people who test positive should stay at home and avoid contact with others for at least five days and employees should only return to work after they have received two negative test results on consecutive days.
- The legal duty of an employee to tell their employer that they need to self-isolate ended.
- The Self-isolation support payments for those on low incomes who self-isolate due to COVID-19 ended.
From 24th March 2022:
- The special COVID-19 Statutory Sick Pay (‘SSP’) provisions will end. See the snapshots section at the end of this newsletter for more information.
From 1st April 2022:
- Free lateral flow and PCR tests will no longer be available for most people.
- Employers will no longer have to specifically consider COVID-19 in their health and safety risk assessments.
So, what are the implications for employers in light of these changes?
High Court Injunction Restricts Tesco’s Ability to ‘Fire and Re-Hire’
The tactic of ‘firing and re-hiring’ employees as a means of changing terms and conditions of employment has received a lot of attention over the last year or so. Last year, the Government asked ACAS to investigate the use of these tactics, which culminated in the publication of further guidance from ACAS, in which it stated that firing and re-hiring is an extreme step that can damage staff morale, trust, productivity and working relations. In October 2021, the Government blocked a Private Members’ Bill which intended to impact fire and re-hire practices and on 22nd February 2022, the Department for Business, Energy and Industrial Strategy again suggested that there was no intention to legislate against firing and re-hiring.
Irrespective of the political debate, firing and re-hiring remains a controversial industrial relations tactic. This was perhaps best exemplified in the recent interesting case of USDAW and others v Tesco Stores Ltd, in which the High Court issued an injunction against Tesco to prevent it from firing and re-hiring a number of Tesco employees in order to remove their entitlement to a contractual enhanced payment.
Dismissal for Raising Vexatious Grievances was Fair
In the case of Hope v British Medical Association, the Employment Appeal Tribunal (‘EAT’) considered the interesting situation relating to the fairness of a dismissal of an employee who had been deemed to have raised vexatious grievances.
Employment Tribunals see 52% Increase in Flexible Working Claims
In January 2022, research showed that the Employment Tribunal had seen a record number of claims relating to flexible working requests: an increase of 52%. It is expected that this increase was largely as a result of the pandemic and increased care responsibilities at home, but is now more likely being driven by employees that do not want to return to the ‘normal’ office ways.
Flexible working is not easily defined and can be a request from part-time hours to job sharing to working from home and/or mobile working (and potentially anything in between). However, research suggests the most common flexible working arrangement is still the request for reduced hours and that it is most commonly women making these requests.
With the above in mind, we thought it would be useful to remind employers of the current statutory position in relation to flexible working and their duties.
Government U Turn on Mandatory Vaccinations
In July 2021 the government passed Regulations which meant that all employees working in care homes would have to be double vaccinated by 11 November 2021 or otherwise they could no longer be employed in that role. Further Regulations were due to be introduced for frontline NHS and wider social care staff in regulated settings from 1 April 2022. It was predicted that, as a result, the NHS would lose over 70,000 frontline workers and the care sector would lose a fifth of its workforce.
However, following a consultation between 9-16 February 2022 the Government have announced yesterday that these Regulations will be revoked from 15 March 2022.
Employment Law Snapshots
Statutory Sick Pay Rebate Scheme to end
As you will recall from our last newsletter, the Statutory Sick Pay Rebate Scheme was reintroduced on 14th January 2022. This means that employers with fewer than 250 employees can recover two weeks’ of SSP for each eligible employee who is off work due to COVID-19 between 21st December 2021 and 24th March 2022.
As at the time of writing, the government has confirmed that this rebate scheme will close on 17th March 2022 and therefore relevant employers will have until 24th March 2022 to submit any new claims for absence periods up to 17th March 2022, or to amend claims that they have already submitted.
This means that from 25th March 2022, employers will need to revert to the normal SSP rules, which means that SSP is paid from the fourth qualifying day that an employee is off work regardless of the reason for their sickness absence.
UK Immigration Rules eased for care workers
For our clients in the care sector, please note that on 24th January 2022, the Home Office published a “Statement of Changes to the Immigration Rules: HC 1019”. This publication added care workers and home carers to the Shortage Occupation List and made the roles eligible for the Skilled Worker Health and Care Worker visa route.
This will mean that applicants will benefit from lower salary requirements and reduced visa application fees compared to other skilled workers.
The changes took effect on 15th February 2022.
Annual Increase to Compensation Limits
The new Tribunal limits have been set out in The Employment Rights (Increase of Limits) Order and laid before parliament. The most notable limits are as follows:
- The maximum amount of a week’s pay for the purpose of calculating a redundancy payment (or basic award) = £571 (from £544)
- The limit on the amount of compensatory award for an ordinary unfair dismissal claim = £93,878 (from £89,493)
These changes will apply to dismissals occurring on or after 6th April 2022.
Every Friday on LinkedIn I post an employment law headline of the week. This is not too taxing and is often very enjoyable/ incredible, last week’s in particular. The Mail reported on an employment tribunal case describing, what is known in employment law circles as, the “in flagrante al fresco” defence:*
See you next time.
*That’s completely made up.