What’s changed and on the horizon for Employment Law

What’s changed for Employment Law?

*Article updated on 18 May 2022.

There have been a few changes in employment law in the last few weeks. In case you missed them, here are the main ones to be aware of.

Unfair dismissal award increases

For any dismissals occurring on or after 6 April 2022, the following limits apply:

• the cap on the compensatory award for a successful claim for unfair dismissal increased from £89,493 to £93,878.
• a week’s pay to calculate a redundancy payment or basic award increased from £544 to £571.

National minimum wage increases

On 1 April 2022, there were a number of changes to the minimum wage rates.

• Age 23 or over (NLW rate): £9.50 (up from £8.91).
• Age 21 to 22: £9.18 (up from £8.36).
• Age 18 to 20: £6.83 (up from £6.56).
• Age 16 to 17: £4.81 (up from £4.62).
• Apprentice rate: £4.81 (up from £4.30).
• Accommodation offset amount: £8.70 (up from £8.36).

The minimum hourly rate of pay for agricultural workers (irrespective of age/duties) in Scotland also saw an increase to £9.50 with particular exceptions under the Agricultural Wage (Scotland) Order.

For the other key employment figures that been updated for 2022, see our helpful summary.

Right to work checks

The changes to pre-employment checks on the right to work that were introduced in the wake of COVID-19, and which allow employers to carry out these checks remotely, have been extended until 30 September 2022.

For further details, see our immigration update.

COVID-19

Both the UK Government and Scottish Government have announced their respective paths towards ‘living with COVID’, with most legal COVID-19 restrictions now at an end. This includes the legal requirement in Scotland to wear face coverings in most indoor public spaces and on public transport, which is now being treated as guidance.

But many employment law and health and safety challenges still remain.

It will be important for employers to consider what they can do to help reduce the spread of the virus and protect their employees. There are a number of guidance documents published by the Scottish Government which are kept updated, such as the safer businesses and workplaces guidance. Our Health & Safety Inquiries Unit can provide you with tailored legal advice, training, court representation and help to ensure you are compliant with current health and safety regulations.

Employers will need to manage absences due to COVID-19, which in some cases could be classed as a disability, and give rise to discrimination claims.

Returning to the workplace is another key area many employers will need to deal with appropriately, balancing business needs with any particular needs of staff, in particular from those who are vulnerable or with family responsibilities.

Our Employment, Immigration and Pensions Team can assist employers with all of these issues.

What’s on the horizon?

Very significant changes in employment law were previously planned by the UK Government, mostly through the UK Employment Bill. Many of these proposed laws were originally expected to have been implemented by now. But the pandemic, cost of living crisis and war in Ukraine have taken priority and, as expected, the Employment Bill was noticeably omitted from the Queen’s Speech on 10 May 2022.

However, as the Employment Bill still seems to be in the pipeline, it’s still useful to know what may be coming – here is a summary below.

UK Employment Bill

The major proposed changes are:

1. Day 1 right to make a flexible working request – Giving all employees a right to make a flexible working request from day 1 (rather than the current 26 weeks’ qualifying service).
2. A new statutory right of up to one week of unpaid carer’s leave – This right applies to employees from day 1 of their employment.
3. Stronger redundancy protection for women and new parents – Giving a right to be offered suitable alternative employment for pregnant employees from the point of notifying their employer of their pregnancy until 6 months after returning from maternity leave, as well as those taking either adoption or shared parental leave.
4. A new right for parents to take statutory leave for neonatal care – This will apply to parents of babies requiring neonatal care and allow them to take leave for up to 12 weeks. If they have 26 weeks’ service, they will be entitled to receive pay during this period.
5. A new right for all workers to request a more predictable and stable contract after 26 weeks’ service – This is designed to assist workers who have irregular hours, and to help address the issues of zero hours contracts.
6. A new single labour market enforcement agency – This body will be responsible for enforcing the basic rights of vulnerable workers including national minimum wage, statutory sick pay, and holiday pay.
7. A requirement for employers to pass on all tips and service changes to their workers in full – for further details, see our article.

Workplace harassment

The findings of the Government Equalities Office consultation on tackling sexual harassment in the workplace were published last year with 54% of overall respondents advising that they had experienced harassment at work. In response to this, the UK government pledged that the following new laws are going to be introduced in the future:

1. a statutory duty for employers to prevent sexual harassment in the workplace
2. a statutory duty for employers to prevent third party harassment

The precise details of these duties are not clear because the legislation isn’t drafted yet. As well as the legislation, there will be a new Equality and Human Rights Commission statutory code of practice and the government plans to produce accessible guidance for employers which will outline what practical steps they can take.

Where an employer is alleged to have breached their duty, the indications are that an incident still requires to have taken place before a claim can be made, and there will likely be a defence where employers can show they have taken “all reasonable steps” to prevent sexual harassment or third-party harassment in the workplace, much like there is currently for discrimination. In summary, this defence applies where the employer has implemented an equality policy, raised staff awareness of it, provided regular and effective training on it and dealing effectively with employee complaints. The new code is expected to provide further clarity on this.

Similar to the UK Employment Bill, it is not known when these proposed laws are to come in force, with the UK Government reported to have advised that they intend to pass legislation “as soon as parliamentary time allows”.

What can employers do now?

Although we don’t know when the changes will apply, the “all reasonable steps” defence can be used for current discrimination and harassment claims.

For the purposes of this defence, what matters is what steps have been taken by an employer prior to the discrimination taking place. So despite these new duties not being in place yet, an employer shouldn’t be put off from updating their harassment policies and procedures and training to ensure that they are appropriate.

Doing this properly can act as a complete defence against discrimination and harassment claims. It will also give employers an early start in identifying any parts of their policies or procedures which required to be amended or updated to meet the new obligations when the changes are introduced.

Key to this defence is rolling out training on a regular basis and be designed with the context of the workplace in mind rather than be generic and off the shelf. Training that is stale is unlikely to convince a Tribunal to uphold such a defence.

We provide bespoke harassment training and have done so for many organisations. Please contact Robin Turnbull, or speak to your usual Anderson Strathern contact, for more details on how we can tailor this training for you.

You might also be interested in the following articles:

• Pensions and independent schools
• Hospitality update – all tips to be paid to employees in full
• Coronavirus – employee health and wellbeing concerns
• Immigration Law Update

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