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Looking ahead to 2022: Employment law developments to look out for
Vicky Schollar is a Senior Associate in the Employment team at Blake Morgan LLP.
What can employers in the travel industry expect in Employment, Immigration and Pensions in 2022? In 2021, we saw a number of pandemic-related Employment Tribunal decisions on issues ranging from use of the furlough scheme, automatic unfair dismissal on health and safety grounds and whistleblowing. Those decisions provide a useful insight into the approach Employment Tribunals are taking and we can expect many more decisions in 2022. By contrast, compared to other years, there is hardly any new employment legislation expected in 2022. The ongoing pandemic will, no doubt, continue to bring many challenges for travel industry employers in the months ahead.
With restrictions currently in place in many parts of the UK, employers need to ensure that they keep up to date with current guidance about making workplaces COVID-19 secure.
Vaccinations are likely to remain a hot topic in the coming months too. Many employers are grappling with tricky issues such as whether they can ask employees about their vaccination status, require their staff to be vaccinated or make employment or certain types of sick pay conditional on being vaccinated, as many employers have started to do.
There are a number of important non-pandemic developments that employers need to be aware of too, and we have summarised them below.
JANUARY
Statutory Sick Pay (SSP)
Temporary regulations provide that, during the period 10 December 2021 to 26 January 2022 inclusive, an employee is not required to provide medical evidence (such as a GP's fit note) to their employer in respect of the first 28 (rather than the first 7) days of any period of incapacity for work. This will apply to any period of incapacity which had begun by 26 January 2022 if it is ongoing after that date.
The SSP Rebate Scheme has been re-introduced as a temporary measure in response to the Omicron coronavirus variant. Regulations came into force on 14 January 2022 and an employer with fewer than 250 employees (as at 30 November 2021) who has paid SSP for absences linked to coronavirus-related sickness or self-isolation could be eligible for a rebate of up to two weeks' SSP for each employee for periods of sickness starting on or after 21 December 2021. The scheme is to end on 24 March 2022.
APRIL
Increase in Statutory Rates
From 1 April 2022, the National Living Wage (payable to workers aged 23 and over) and the National Minimum Wage will increase as follows:
- For workers aged 23 and over from £8.91 to £9.50
- For workers aged 21-22 from £8.36 to £9.18
- For workers aged 18-20 from £6.56 to £6.83
- For workers aged 16-17 from £4.62 to £4.81
- Apprentice rate from £4.30 to £4.81
The increase in the National Living Wage rate to £9.50 represents an increase of 6.6% and the age threshold will reduce again to those aged 21 and over by 2024.
From 3 April 2022:
- The weekly rate of statutory maternity, adoption, paternity, shared parental and parental bereavement leave pay will increase from £151.97 to £156.66 or 90% of the employee's average weekly earnings if this is less than the statutory rate.
From 6 April 2022:
- The weekly rate of statutory sick pay will increase from £96.35 to £99.35.
New limits on statutory redundancy pay and Employment Tribunal awards are expected to come into force on 6 April 2022, but have not been published at the time of writing.
Increase in National Insurance Contributions
From 1 April 2022, there will be an increase of 1.25% in the rates of some National Insurance contributions (NICs). The NIC increase will apply to classes 1 (employee and employer) and 4 (self-employed), both main and higher rates.
Gender Pay Gap Reporting
Large employers in the private and voluntary sector will have to report Gender Pay Gap information based on the "snapshot date" of 5 April 2021 and the deadline for reporting and publishing is 4 April 2022.
Changes to the reporting deadlines due to the pandemic, the impact of the pandemic on pay, such as temporary pay reductions, reduced working hours and job losses in the travel industry will have had an impact on the gender pay gap. Furlough absences will also have a significant impact on calculations.
The furlough scheme also disadvantaged many women because of the effect of childcare responsibilities and the disproportionate representation of women in badly affected sectors such as the travel industry and/or in insecure work.
Right To Work Checks
Before any individual of any nationality starts work, it is essential to establish that the individual has the right to work in the UK. Failure to carry out a "right to work check" or to carry it out properly, can result in a fine of up to £20,000 for each illegal worker as well as criminal penalties if an employer is found guilty of employing someone who they knew or had "reasonable cause to believe" did not have the right to work in the UK.
Following the right to work checks "Covid concession", which remains in place until 5 April 2022 (whereby a photo/scanned document proving the right to work can be sent digitally and checked via videolink, rather than the employer requiring the original), the Government has announced a new digital system to take effect on 6 April 2022.
Employers will be able to use certified "Identification Document Validation Technology" service providers to carry out digital identity checks on their behalf for those whose right to work cannot be checked via the Home Office's online services, including British and Irish citizens. Full details are yet to be publicised.
From 6 April 2022, Biometric Residence Permit and Biometric Residence Card holders will evidence their right to work using the Home Office online service only, presentation of a physical document will no longer be acceptable.
JUNE
Additional Bank Holiday
As part of the celebration of the Queen's Platinum Jubilee, the late May bank holiday will be moved to Thursday 2 June 2022 and an additional bank holiday will take place on Friday 3 June 2022. Those in the travel industry are likely to need to start making plans to cover staff absences and increased demand from customers for holidays if they have not already done so.
Employers should also check contracts of employment to determine whether employees have the right to take the additional bank holiday of 3 June 2022 as a day's paid holiday.
UPCOMING JUDGMENTS AND HEARINGS
We are still waiting for a number of important decisions:
Chell v Tarmac Cement and Lime Ltd
The Court of Appeal has just ruled on an appeal it heard in November 2021 as to whether or not an employer was negligent or vicariously liable for the actions of an employee whose practical joke unintentionally caused injury to a contractor at work. It upheld the High Court's decision that there was not a sufficient connection between the wrongful act and the employee/employer relationship. It was in no way connected to duties the employee was authorised to do, nor was violence reasonably foreseeable. Even if had been reasonably foreseeable, in the context, a health and safety policy or other rules covering "horseplay" would be unrealistic, beyond the level of the employer's site rules, which stated that "no-one shall intentionally or recklessly misuse any equipment".
Smith v Pimlico Plumbers Ltd
In December 2021, the Court of Appeal considered whether the claimant, who had not been provided with any paid annual leave in breach of the Working Time Regulations 1998, could carry over his entitlement for untaken leave and leave which he took but was not paid either at the time he took it or within three months after it became due.
HMRC v Atholl House Productions Ltd
By 21 March 2022, the Court of Appeal will consider whether rules on intermediaries (IR35) applied to a journalist providing services to the BBC through a personal service company. HMRC has taken the view that although the journalist was not a BBC employee, the fee paid to the company by the BBC should be treated as employment income and the company is obliged to account for PAYE tax and to pay NICs.
UPCOMING LEGISLATION – NO DEFINED DATES
Carer's Leave
There will be a new "day one" statutory right of up to one week's unpaid carer's leave.
Sexual Harassment
The Government will introduce a new duty for employers to prevent sexual harassment and re-introduce the concept of third-party harassment in the workplace. It will also look closely at the possibility of extending the three month time limit for workplace harassment and discrimination claims under the Equality Act 2010 to six months.
Flexible Working
The Government's consultation paper, Making Flexible Working the Default is considering points such as whether the right to request flexible working should be a day one right (not requiring 26 weeks' service), whether the eight business reasons for refusing a request all remain valid and whether the employee could be allowed to make more than one request per year.
ICO Employment Practices Code
The Information Commissioner's Office (ICO) is considering responses to help in updating its data protection and employment practices guidance (which has not been updated post GDPR/UK GDPR). As well as including previous topics, it will also be updated to include recent changes such as artificial intelligence, monitoring technologies and the impact of the COVID-19 pandemic on remote working.
Employment Bill
The Employment Bill was announced in December 2019, and its proposals include:
- Establishing a single enforcement body for employment rights.
- Strengthening the rules on tips and service charges so that distribution is more transparent.
- Extending the period of redundancy protection for expectant and new mothers returning to work after maternity leave until six months after the end of maternity leave.
- A new right to paid neo-natal leave for parents.
PENSIONS
The obligation on pension schemes to consider the risks and opportunities of climate change
- Pensions legislation came into force on 1 October 2021, requiring the trustees of occupational pension schemes with £5 billion or more in relevant assets and all authorised master trusts and collective money purchase schemes, to set climate-related targets from October 2021, aligned with the Paris Agreement temperature goal and report annually on it. There is an element of reasonableness and proportionality in meeting the obligations.
- Schemes with at least £1billion in relevant assets have to meet the same requirements from 1 October 2022. The Government will review the position at that point (2023) to assess whether the legislation remains appropriate and whether to extend it to smaller schemes.
- Enforcement powers lie with the Pensions Regulator - contravention of the legislation may attract fines of up to £5,000 in the case of an individual and up to £50,000 in the case of a company.
- For contract-based schemes such as group personal pension schemes, the insurance company provider will be subject to similar Financial Conduct Authority (FCA) rules. The FCA is under a formal obligation to consider climate change issues in discharging its functions.
In following the new framework, trustees of occupational pension schemes will still need to keep at the forefront of their minds their fiduciary duties to act in the best interests of members, which may complicate decision-making.
Increase of the minimum pension age from 55 to 57 in 2028
The normal minimum pension age (NMPA) is the earliest age from which an individual can draw their workplace or personal pension, other than on ill-health grounds or where they have a "protected pension age." It is separate from the State Pension age, which is the earliest age an individual can draw their State Pension.
The Finance (No. 2) Bill will, if it becomes legislation, increase the NMPA from 55 to 57 from 6 April 2028. However, there are a number of exceptions to the change.
- Members of pension schemes who before 4 November 2021 have a right to take their benefits at or before age 55 retain that right.
- Many will be able to retain the age 55 NMPA on transfer of their benefits to another scheme (they may end up with accounts with two different pension ages).
One interesting issue identified by former Pensions Minister Steve Webb is what happens if the rules of a pension scheme say that a member can access their pension from "normal minimum pension age". In that case, it is not clear if this means the current age of 55 or the new normal age of 57 from 2028.
CONCLUSION
The ongoing pandemic will continue to bring many challenges for many in the travel industry and key topics to be aware of include:
- Being mindful of employees' mental wellbeing including ensuring that sources of support such as employee assistance and counselling helplines are publicised and/or train staff to become mental health first aiders.
- The impact of long COVID. In a report published by the ONS on 6 January 2022, an estimated 1.3 million people in the UK are experiencing self-reported long COVID.
- New ways of working, including hybrid working. Employers need to address a wide range of legal and practical issues when implementing hybrid working to reflect the homeworking element. These include health and safety, the provision of equipment, data protection and changes to contracts and HR policies. Employers should take care to ensure that hybrid working policies and practice are inclusive and fair.
- The impact on women of the menopause, which became increasingly high profile in 2021 and that is unlikely to change in 2022. The physical and psychological impact can vary in severity and have a huge effect on an individual’s day-to-day activities and ability to perform as usual in the workplace. Research shows that some women reduce their hours or give up their jobs as a result and/or do not apply for promotion because of the impact of the menopause.