Looking ahead to 2022: Employment, Immigration and Pensions Law developments

STOP PRESS: Since this article was written, on 31 January the Health Secretary announced plans to abolish the imminent legal requirement for compulsory COVID-19 vaccinations in the health and social care sector in England. See our April section, Compulsory Vaccinations and our updated article compulsory COVID-19 vaccinations in wider healthcare sector. A short consultation exercise was commenced on revoking the vaccination requirement and that concluded on 16 February. On 1 March, the Government confirmed that Regulations requiring COVID-19 vaccination to work in Care Quality Commission (CQC) registered care homes in England are to be lifted from 15 March. Further, that the legal requirement for health and social care staff in England to be vaccinated from 1 April is to be removed.

Compared to other years, there is hardly any new employment legislation expected in 2022. The ongoing coronavirus pandemic however will continue to bring many challenges for employers and HR professionals in the months ahead.

With restrictions currently in place in many parts of the UK, employers once again have to manage employees working remotely on a large scale. Where they still have staff attending the workplace, employers need to ensure that they keep up to date with all current guidance about making workplaces COVID-19 secure. This is especially the case for pregnant employees. A report published in December 2021 by Maternity Action highlights the inadequacy of workplace health and safety rules and advice for many pregnant employees.

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.

There are a number of important non-pandemic developments that employers need to be aware of that derive from the Government’s recent responses to consultation exercises, for example the introduction of carer’s leave and a new duty on employers to prevent sexual harassment. There may also be changes to the right to request flexible working this year or, at the very least, the Government’s response to the recently concluded consultation exercise about extending the right.

We may even see more progress on the Employment Bill from 2019!

Employment, Immigration & Pensions Law Developments:

• Statutory Sick Pay
• National Disability Strategy
• Disability Workforce Reporting
• Compulsory Vaccinations
• Increase in Statutory Rates
• Increase in National Insurance Contributions
• Gender Pay Gap Reporting
• Right To Work Checks
• Additional Bank Holiday
• Upcoming judgments and hearings in 2022
• Upcoming developments in 2022
• Pensions news
• Conclusion

January

Statutory Sick Pay

Two important developments were announced shortly before Christmas and perhaps because of their timing, they went under the radar for the most part.

New Regulations relevant to statutory sick pay (SSP) came into force on 17 December 2021. They provide that 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 days of any period of incapacity for work. This is a considerable extension of the previous period of 7 days. The change is temporary and the reason for it is to reduce the burden on GPs at the current time and to free up GP capacity.

Note that the change is limited to periods of incapacity for work during the period 10 December 2021 to 26 January 2022 inclusive.

The change does not apply to periods of incapacity which begin after 26 January 2022 but will continue to apply to any period of incapacity which is ongoing and which commenced before 26 January 2022.

The second development relates to the re-introduction to the SSP Rebate Scheme which was announced on 21 December 2021. Once again, this is stated to be a temporary measure introduced in response to the Omicron coronavirus variant. Regulations come 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 the rebate for periods of sickness starting on or after 21 December 2021. They could recover up to two weeks’ SSP for each employee.

Claims can be made retrospectively from mid-January and guidance on how to claim is expected imminently. The scheme will end on 24 March 2022.

February

National Disability Strategy

On 28 July 2021, the Government published its National Disability Strategy setting out various steps that it will take to remove barriers faced by disabled people in all aspects of their lives including housing, transport, jobs and education. It is estimated that there are 14.1 million people in the UK living with a disability and the Government is keen to make the world of work more inclusive and accessible as well as specifically providing further support to disabled apprentices. This will include an investigation by the Department for Education to understand the barriers faced by disabled people in undertaking apprenticeships and how to address them. The Department for Education will work with the Apprenticeship Diversity Champions Network of Employers, the Disabled Apprentices Network and the disability sector in this investigation and the findings will be published during National Apprenticeship Week in February 2022.

The National Disability Strategy has had a mixed response from charities and campaigners to the proposals it contains. Many of the employment commitments describe next steps that will be taken towards considering changes (for example, consultations, reviews or pilots), meaning that the changes themselves may be still be some way off. It therefore remains to be seen whether the Strategy will have an impact on the working lives of disabled people in the short to medium-term.

March

Disability Workforce Reporting

The Government issued a consultation paper on 16 December 2021 on disability workforce reporting for large employers. The consultation period ends on 25 March 2022.

Currently, there is a 28.4% gap in the employment rate of working age disabled people compared with working age non-disabled people. This is known as the disability employment gap. Although the gap is narrowing, it is the Government’s view that it has “remained frustratingly high and enduring”.

It is the Government’s view that reporting on disability within a workforce can “provide an important baseline from which employers can assess the impact of their inclusive practices on the recruitment and retention of disabled people”. The consultation paper is seeking views on issues such as current reporting practices, benefits and barriers to disability workforce reporting and how a mandatory approach to reporting might be implemented.

April

Compulsory Vaccinations

Implementing regulations will come into force on 1 April 2022 which will make COVID-19 vaccinations compulsory for front line health and social care workers in England who have face-to-face contact with patients and service users. Certain exemptions will be permitted.

Similar to the position in CQC-registered care homes in England, the proposed regulations will require evidence of COVID-19 vaccines as a condition of deployment rather than mandating them as such.  See our article for more information on compulsory COVID-19 vaccinations in wider healthcare sector.

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.

At this stage, we do not have the details of the new limits on statutory redundancy pay and Employment Tribunal awards which are expected to come into force on 6 April 2022. Statutory redundancy pay is calculated taking into account length of service, the employee’s age and weekly pay which is subject to a statutory cap, currently £544.

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. This NIC increase is effectively the first step in the introduction of the health and social care levy which is based on NICs. From April 2023, the levy will be formally separated out when the health and social care levy becomes chargeable and NICs rates will return to their 2021/22 levels.

Gender Pay Gap Reporting

Gender pay gap calculations are based on payroll data on the “snapshot date”.

For current reporting requirements in the private and voluntary sector, the “snapshot date” is 5 April 2021 and the deadline for reporting and publishing is 4 April 2022.

For the public sector, the “snapshot date” is 31 March 2021 and the deadline for reporting and publishing is 30 March 2022.

Employers should be mindful of these reporting dates because in the past two years, and due to the pandemic, there was no requirement to report at all for the reporting year 2019/2020 (although employers could choose to report) and for 2020/2021 employers were given an additional six months to report.

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 certain sectors have all had an impact on the gender pay gap. Furlough absences will also have a significant impact on calculations.

Read our article about how the furlough scheme disadvantaged many women because of the effect of childcare responsibilities and the disproportionate representation of women in badly affected sectors or in insecure work.

As a result, it is difficult to draw clear conclusions from gender pay gap reporting over the past two years although the gap does appear to have narrowed very slightly.

Interestingly, the Office for National Statistics (ONS) publishes its own Annual Survey of Hours and Earnings. The Survey published in October 2021 revealed that for full-time employees, the 2021 gender pay gap of 7.9% has grown since 2020 (7%) but remains smaller than it was in 2019 (9%). However, the ONS cautioned against making comparisons over recent years because of the significant impact of the pandemic.

It is important to note that the ONS analysis considers differences in pay between women and men by age, region, full-time and part-time work and occupation and is different from compulsory gender pay gap reporting.

Finally, the Regulations requiring employers to publish information about gender pay gaps came into force in April 2017. This date is significant because within five years of the implementation date, that is, by April 2022, the Government must review the Regulations to assess the extent to which they have met the objective of narrowing the gender pay gap and whether any unnecessary burden is placed on employers. There is no information as yet about the Government’s review. One interesting aspect to look out for in the review is whether large employers should have to publish their family-related leave and pay policies. This was an issue raised in a 2019 consultation exercise (but not progressed) and it will be revisited as part of the review of the Regulations.

Right To Work Checks

Stop press: Extended end date. Note that on 22 February 2022, the Government updated its Guidance to reflect the extended end date for the temporary adjusted checking process to 30 September 2022 (inclusive).

Employers will be aware that before any individual of any nationality starts working for them, 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. There are criminal penalties too, with a custodial sentence of up to 5 years and an unlimited fine 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.

On 30 March 2020, a temporary COVID-19 concession was introduced and the adjusted check measures remain in place until 5 April 2022 (inclusive) and these provide that:

• An employer must ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app.
• An employer must arrange a video call with the worker and ask them to hold up the original documents to the camera and check them against the digital copy of the documents, record the date of the check and mark it as “adjusted check undertaken on (the specified date) due to COVID-19”.
• If the worker has a current Biometric Residence Permit or Biometric Residence Card or has been granted status under the EU Settlement Scheme or the points-based immigration system employers can use the online right to work checking service while doing a video call subject to the worker giving consent to their details being viewed.

The COVID-19 concession on conducting right to work checks remotely during the pandemic proved popular with employers. With this in mind, and with an expected increase in hybrid and remote working, the Government initiated a review of the availability of specialist technology to support a system of permanent digital checks in the future. Details of the review were published on 27 December 2021 and the relevant changes to the legislation will take effect from 6 April 2022.

• Employers will be able to use certified Identification Document Validation Technology (IDVT) service providers to carry out digital identity checks on their behalf for many who are not in scope to use the Home Office online services, including British and Irish citizens. IDVT should enhance the security and integrity of the checks. As the Government has stated, use of the technology across the identity process removes human error in terms of identifying fraudulent documents or inaccuracies.
• For the individuals concerned, using IDVT allows them to upload images of their personal documents, instead of presenting physical documents to a prospective employer or emailing them, which has the benefit of reducing time and mitigating risk.
• 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.

New guidance will be issued before the implementation date and we will keep you updated.

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, while an additional bank holiday will take place on Friday 3 June 2022.

Employers are likely to face an increased number of requests for holidays around this time with many employees wanting to take advantage of the four-day weekend by adding some extra days of annual leave. Employers will need to ensure that they have in place a clear and consistent procedure for dealing with holiday requests. They will also need to plan well in advance for potential staffing issues.

Employers should also look at their organisations’ contracts of employment as these are likely to determine how they approach the additional bank holiday of 3 June 2022. For example, the contract may state that employees’ annual leave entitlement includes “all bank and public holidays” or it may specify “8 days of bank and public holidays”. If the latter, employers will then need to decide whether or not to give the additional bank holiday and prepare accordingly.

Upcoming judgments and hearings in 2022

We are still waiting for a number of important judgments from the Supreme Court and Court of Appeal relating to appeals heard in 2021.

Harpur Trust v Brazel

In November 2021, the Supreme Court heard an appeal as to whether the Working Time Regulations 1998 provide for pro-rating of the holiday entitlement or holiday pay of a permanent employee who only worked for part of the year. The Supreme Court’s decision will have significant implications for part -year workers with no normal working hours and will, for example, heavily impact schools who frequently use term-time only and zero-hour contracts for their staff.

Chell v Tarmac Cement and Lime Ltd

In November 2021, the Court of Appeal heard an appeal 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. The High Court held that it was expecting too much of an employer to devise and implement a health and safety policy, or other policy or site rules, which descend to the level of horseplay or the playing of practical jokes.

Stop press: the Court of Appeal upheld the High Court’s decision today.

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.

There are two specific appeals to look out for in the early part of 2022.

Angard Staffing Solutions Ltd v Kocur and others

On 19/20 January 2022, the Court of Appeal will consider the scope of the rights conferred on agency workers. The issue is whether a worker who had an open-ended contract of employment with an agency that only ever supplied workers to one end-user was nonetheless supplied to work “temporarily” for that end-user, satisfying the definition of “agency worker” in the Agency Workers Regulations 2010.

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 developments in 2022

Carer’s Leave

On 23 September 2021, the Government confirmed that it will introduce a new statutory right of up to one week of unpaid carer’s leave. It will be a “day one” right with no qualifying period of service needed. As the leave is unpaid, it is possible that many carers will continue to use annual leave because they cannot afford unpaid time off work.

The right will be introduced “when Parliamentary time allows” and for more details see our article Government proposals for Carer’s Leave.

Sexual Harassment 

In July 2021, the Government published its response to the 2019 consultation on workplace sexual harassment. It 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 months’ time limit for workplace harassment and discrimination claims under the Equality Act 2010 to six months. The new duty will be introduced “as soon as Parliamentary time allows”.

In addition, the Government will discuss scope for further strategic enforcement action by the Equality and Human Rights Commission (EHRC) and support the EHRC to develop a new statutory Code of Practice. It is expected that guidance for employers will be produced to complement the Code of Practice.

Flexible Working

On 23 September 2021, Making Flexible Working the Default consultation paper was launched and the consultation period ended on 1 December 2021.

The key points include whether the right to request flexible working should be a day one right (currently employees need 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.

It is important to note that even if the proposals were adopted, it would still simply be a right to request and not a right to have flexible working.

See our article on Flexible Working Rights – Delving into the consultation for further information.

ICO Employment Practices Code

The Information Commissioner’s Office (ICO) requested responses to help in updating its data protection and employment practices guidance to assist employers and staff to comply with current data protection legislation. The closing date for responses was 21 October 2021.

The guidance will cover topics including recruitment and selection, employment records, monitoring of workers, and information about workers’ health. The aim is to reflect recent changes in working life such as artificial intelligence, monitoring technologies and the impact of the COVID-19 pandemic on remote working.

Employment Bill

It was back in December 2019 that the Employment Bill was announced. As mentioned above, there have been developments in relation to carer’s leave and a recent consultation exercise about flexible working. Other developments include:

• Establishing a single enforcement body for employment rights.

On 8 June 2021, the Government responded to a 2019 consultation paper and confirmed that when Parliamentary time allows, it will bring forward legislation to create a single enforcement body with an expanded remit to protect vulnerable workers and ensure they receive their employment rights. The body will support employers to comply with the law and provide businesses with detailed technical guidance. New non-compliance and enforcement powers will be introduced. There is no timetable for any of these developments.

• Strengthening the rules on tips and service charges so that distribution is more transparent.

On 24 September 2021, the Government published a response to a 2016 consultation on tipping, gratuities, cover and service charges. It confirmed its intention to legislate that tips left for workers are to be retained by them in full. In addition, there will be a statutory Code of Practice setting out how tips should be distributed to ensure fairness and transparency. Finally, a new right for workers will be introduced whereby they can make a request for information relating to an employer’s tipping record. There is no timetable for any of these developments.

There has been little progress on other significant topics covered in the Bill. These include 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 and the introduction of a new right to paid neo-natal leave for parents.

Pensions news

The obligation on pension schemes to consider the risks and opportunities of climate change

• Legislation came into force on 1 October 2021, The Occupational Pension Schemes (Climate Change Governance and Reporting) Regulations 2021 and The Occupational Pension Schemes (Climate Change Governance and Reporting) (Miscellaneous Provisions and Amendments) Regulations 2021. Broadly speaking, it requires 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, which is currently making its way through Parliament, 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.

• The change does not impact members of the firefighters, police and armed forces public service schemes.
• 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 55 or 57.

Conclusion

The ongoing pandemic will continue to bring many challenges for employers and HR professionals in 2022. In addition to the developments outlined above, there are some key topics employers need to address:

• Employers should continue to be mindful of their employees’ mental wellbeing especially when staff are working remotely. A report published by the Health and Safety Executive (HSE) in December 2021 found that stress, anxiety and depression caused half of all work-related illness in the past 12 months. There is no doubt that the pandemic has had a detrimental impact on mental health and employers should be proactive in supporting their staff. For instance, ensuring that sources of support such as employee assistance and counselling helplines are publicised or training staff to become mental health first aiders.
• We can expect long COVID to become increasingly high profile. 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. Fatigue was the most common symptom (51%), followed by loss of smell, shortness of breath and difficulty concentrating. Long COVID was most prevalent in people aged 35 to 69 years and in the employment context, those working in health care, social care, or teaching and education.
• The pandemic has accelerated many employers’ longer-term strategy to consider new ways of working such as hybrid working. That trend is likely to continue in 2022. 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 to avoid any unintended consequences.
• The menopause became increasingly high profile in 2021 and that is unlikely to change in 2022. The physical and psychological impact can vary in severity and can 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. See our article on what employers need to know about the menopause for further information.
• Over 2021, we saw many pandemic-related Employment Tribunal decisions relating to claims arising out of the furlough scheme, whistleblowing, automatic unfair dismissals for refusing to return to work on health and safety grounds and redundancy. Many of these decisions were covered in our 2021 Newsletters and for more details, see below.
  • Recent Employment Tribunal decisions on pandemic-related claims
  • Care needed to avoid dismissal claims arising out of the COVID-19 pandemic
  • First Employment Tribunal decision on pandemic-related protected disclosures claim

We can expect many more decisions in 2022.

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