Employment law update 

Just a reminder…

…that increases to the following are now in place: 

• National Minimum Wage rates 
• Statutory benefit payments 

Employment Tribunal compensation limits  

1.25% National Insurance Contributions (NICs) rise now in place

The promised increase of 1.25% to Class 1, 1A and 1B and Class 4 NICs came into force on 6 April 2022 and will last until 5 April 2023. Class 2 and 3 NICs remain unchanged. The 2022 increase will not apply to workers over the state pension age. The new 1.25% health and social care levy will be introduced in April 2023.

COVID-19 – guidance from HSE 

Following the lifting of COVID-19-related restrictions, the HSE has published guidance for employers on how to manage the ongoing risk of the disease in the workplace. It notes that COVID-19 is now treated as a public health issue: 

• Workplaces no longer have to explicitly consider COVID-19 as part of their statutory health and safety risk assessments or have specific measures in place (unless workers are likely to come into contact with the virus, for instance in labs). 
• Employers must continue to comply with their general legal obligations regarding health and safety, including assessing risks in the workplace, providing information about identified risks, consulting with employees on health and safety issues and any proposed changes that might affect health and safety. 
• Employers can continue implementing measures to reduce the spread of COVID-19 such as maintaining a clean workplace, allowing fresh air to circulate and monitor any outbreaks of COVID-19 amongst the workforce to fulfil their general health and safety obligations. 
• Employers must keep up to date with guidance on protecting those at higher risk of contracting COVID-19 and the vaccination programme, as well as general public health advice. 

Employers may wish to continue supporting and enabling staff who wish to be vaccinated against COVID-19 when offered the vaccine.  

Vento Bands increase

The “Vento bands” are the guidelines that Employment Tribunals follow when assessing the appropriate level of financial compensation for ‘injury to feelings’ awards in cases of discrimination. There are 3 bands, all of which increased on 6 April 2022 as follows:

• Lower band: £990 to £9,900 (less serious cases, e.g. a one-off act of discrimination); 
• Middle band: £9,900 to £29,000 (cases that do not merit an award in the upper band); and 
• Upper band: £29,600 to £49,300 (the most serious cases, e.g. following a lengthy campaign of discrimination treatment). 

In exceptionally serious cases, the upper band could exceed £49,300 and, as such, there is no “limit” on injury to feelings awards. Nevertheless, awards in excess of the upper band are extremely rare

Ethnicity pay gap reporting not to be mandatory

The Government has responded to the Commission on Race and Ethnic Disparities recommendations on how to make Britain more inclusive by outlining 70 actions as part of an inclusion strategy. However, one recommendation that will not be introduced for now is mandatory ethnicity pay gap reporting, despite widespread calls for it to be a mandatory requirement. The Government will, however, be encouraging voluntary reporting as well as equipping employers with the tools to understand why pay disparity exists and how to tackle it. Guidance to help employers with voluntary ethnicity pay gap reporting is expected to be published in summer 2022. 

Why has the Government decided against making this mandatory? Some of the reasons identified are:

• Incomplete ethnicity data held by employers, which could adversely affect the interpretation and accuracy of the reports. However, the government has said that its guidance will help to mitigate this issue. 
• Some areas of the country are more ethnically diverse than others. 

The government wants to avoid imposing additional burdens on employers who are still recovering from the pandemic. 

Statutory Code of Practice to govern ‘fire and re-hire’

Following the abrupt dismissal of hundreds of P&O Ferries employees, the government has announced that it will introduce a Statutory Code of Practice to govern the so-called practice of ‘fire and re-hire’, which is often used to change employees’ terms and conditions of employment without seeking their consent. 

Part of the Code will cover the correct way of holding a fair, transparent and meaningful consultation with employees if changes to their terms and conditions are being sought. It is also expected to cover the importance of consulting with employees as part of a redundancy process. 

No timetable has been announced; however, the Code is expected to act as a “deterrent” against employers using the “fire and re-hire” tactic against employees. Further, Employment Tribunals are likely to be required to take the Code into account when considering cases such as unfair dismissal and could have the power to award an uplift in compensation if an employer unreasonable fails to follow the Code. That being said, until details of Code are announced, details and penalties associated with it can only be regarded as speculative.        

Case Update

Grievances result in dismissal for gross misconduct 

Hope v British Medical Association 

In an unusual case, an employee was (eventually) dismissed for gross misconduct after having raised a total of seven grievances, over the course of a year, against senior managers while thwarting attempts either to resolve the issues or withdraw the grievances. The claimant, Mr Hope, was initially unhappy for being criticised about the tone of an email he had written after reading a report by his senior manager. His concerns about this feedback escalated into an informal grievance. He subsequently raised a number of other grievances relating to his non-inclusion in certain meetings as well as other matters. After being given a deadline to decide if he wanted to move to the formal stage of the grievance procedure, he raised another grievance about being subjected to ‘an arbitrary deadline’. The Claimant refused to progress any of his grievances to a formal grievance process, but also refused to withdraw any of them. He disregarded warnings that he could face disciplinary action if his grievances were judged as frivolous. He was finally dismissed for gross misconduct for submitting numerous frivolous grievances and failure to follow reasonable management instruction by failing to attend his grievance hearing. 

He brought a claim for unfair dismissal. The tribunal dismissed his claim, stating that his conduct was ‘vexatious and unreasonable’ and that the decision to dismiss was ‘within the band of reasonable responses of a similarly sized and resourced employer in these circumstances’. He subsequently appealed before the EAT on the basis that the Tribunal had wrongly concluded that his actions could be considered as gross misconduct. His appeal was also dismissed. It will come as no surprise that this case turned on its specific facts. Nonetheless, employers facing repeated or numerous frivolous and vexatious grievances may be able to justify dismissal if the employee continually blocks attempts to resolve them. This will be welcomed by employers who find themselves dealing with an infinite cycle of grievances issued by the same individual, however, it is imperative that every matter is considered on its own facts.