Employment law update

20 January 2022

Rises to wage and statutory rates 2022
From 1 April 2022: 

      • National Living Wage: £9.50 per hour (from £8.91) aged 23 and over
      • National Minimum Wage rates:

£9.18 per hour (from £8.36) aged 21 – 22 
£6.83 per hour (from £6.56) aged 18 – 20 
£4.81 per hour (from £4.62) aged 16 -17  £4.81 per hour (from £4.30) for apprentices aged 19 and under or in their first year 

From April 2022, statutory benefit payments:
Statutory maternity, paternity, adoption shared parental and parental bereavement pay increases to £156.66 (from £151.97) per week (or 90% of the employee’s average weekly earnings, whichever is lower) from 3 April. The gross weekly earnings threshold has also been increased to £123 (from £120).  Maternity allowance increases to £156.66 (from £151.97); the gross weekly earnings threshold remains at £30.  Statutory sick pay limits rise to £99.35 (from £96.35) from 6 April. Again, the earnings gross weekly earnings threshold has also been increased to £123 (from £120).

Other key dates 

National Insurance Contributions (NIC) to rise by 1.25% from 2022: From 6 April 2022 to 5 April 2023, an additional 1.25% will be added to Class 1 (paid by employees), Class 4 (paid by self-employed) and secondary Class 1, 1A and 1B (paid by employers) NICs. This will be spent on the NHS and social care in the UK. Class 2 and 3 NICs remain unchanged and the 2022 increase will not apply to workers over the State Pension age. From 5 April 2023, National Insurance will return to its current rate and a new Health and Social Care Levy of 1.25% will be introduced. This levy will also apply to those over State Pension age who are in work.

Gender Pay Gap: an employer must report gender pay gap data if the organisation has 250 or more employees. The gender pay reporting deadline for 2022 is 30 March for most public sector employers and 4 April for private sector, voluntary and some public sector employers.

Right to Work: the temporary adjustment to Right to Work checks as a result of Covid-19 are due to end on 5 April 2022. The government issued new guidance on Right to Work checks issued on 16 December 2022. It will not be necessary for employers to carry out a retrospective check for employees where a manual check was completed on or before 5 April 2022.           

Mandatory vaccinations. Following the imposition of mandatory vaccinations in care homes, the government has announced that Covid-19 vaccination will be a compulsory condition of deployment for NHS Healthcare Workers from 1 April 2022. The government is being urged to delay the deadline due to the risk of a “mass exodus” of workers.
Platinum Jubilee bank holiday 3 June 2022
The Nation will come together over a four-day Bank Holiday weekend to celebrate the Queen’s 70-year reign. The Spring Bank Holiday weekend will be moved to Thursday 2 June with an additional Bank Holiday on Friday 3 June, creating a four-day weekend to celebrate the Queen’s Platinum Jubilee. 

Unless an employee’s contract of employment specifically states that they are entitled to bank holidays in addition to a set number of days of paid leave, it will be down to the employer’s discretion whether or not to grant an extra day’s paid leave. Although employees do not have an automatic right to paid leave for public holidays, reputationally and with a view to maintaining staff morale it would be in an employer’s interest to demonstrate some generosity on the issue. Employers should also consider balancing this with leave that they might otherwise have granted over the Christmas period (for example) to minimise the impact that this would have on the business.  
Meet the new members of our team
We’re delighted to welcome some new faces to the employment team. Many of you will already know Gemma Clark who, having completed her training contract, joins the team as a qualified solicitor; solicitor Kash Dosanjh, who joined us this month, is here to help on all aspects of employment law and has particular interest in HR matters; and Ellis Burns completes the line-up, supporting the team as a paralegal. 
 Case update  
Tribunal must evaluate claim that long-term absence causes disruption

Gray v University of Portsmouth 

In a disability-related case from last year, the EAT ruled that, following an appeal from Mr Gray who was dismissed from his IT position at Portsmouth University, the ET must carry out a critical evaluation of the University’s claim that dismissing Mr Gray was a proportionate mean of achieving a legitimate aim. Although the University had followed the correct procedures when dismissing Mr Gray, who had been on sickness absence for two years related to his disability (autism), they had not made it clear exactly what Mr Gray’s role involved, how his absence materially affected the smooth running of the department or whether or not they had had to incur costs to cover his absence. The judge noted that just finding it ‘obvious’ that Mr Gray’s absence was disruptive was not sufficient; the tribunal must objectively assess how his absence contributed to that disruption rather than accepting it as fact, and set out its reasoning if it finds that this was, indeed, the case. When faced with long-term absence, employers must not assume that a tribunal will find it equally obvious that such a lengthy absence will inevitably impact negatively on the business; they must set out exactly how and why.