• Although the employment landscape has been dominated by Brexit and the coronavirus pandemic over the past couple years, changes to employment laws are still taking place.

    Employers should be aware of these changes and take care not to overlook these.

    In this article we review the latest employment law changes and issues that have recently come into effect and other key issues that employers should be aware of.

    1 April 2021

    National living and minimum wage

    From 1 April 2021, the national living wage increased from £8.72 to £8.91 per hour. From April 2021 this rate applies to workers aged 23 and over.

    The rates for workers aged 21-22 has increased to £8.36 per hour, and for 18-20 year olds is now £6.56 per hour.

    The young workers rate (for those aged 16-17) has increased to £4.62 per hour and the apprentice rate increased by 15p per hour, to £4.30.

    The record keeping period for national minimum wage purposes has also increased from three, to six years.

    4 April 2021

    From 4 April 2021, the prescribed rate for family related pay (statutory maternity, paternity, adoption, shared parental leave and maternity allowance) increased to £151.97 per week.

    Statutory Sick Pay

    The rate of Statutory Sick Pay (SSP) has increased to £96.35 per week.

    6 April 2021

    Increase to tribunal awards

    For dismissals taking place since 6 April, the maximum compensatory award for unfair dismissal has increased to £89,493 (or 52 weeks’ pay, whichever is the lower).

    The statutory limit on a gross weeks’ pay has also increased to £544. This means that the maximum statutory redundancy payment is now £16,320.

    The bands of awards for injury to feelings in discrimination cases (known as the Vento bands) have also increased for claims presented on or after 6 April 2021.

    The lower band for less serious cases is now £900 – £9,100, the middle band for cases that do not merit an award in the upper band is £9,100 – £27,400. The upper band for the most serious cases is £27,400 – £45,600. Only the most exceptional cases will be capable of exceeding £45,600.

    IR35

    Changes to the off-payroll working rules (or IR35) came into effect on 6 April 2021, having been postponed from April 2020.

    The changes apply to medium and large clients in the private sector who engage contractors via an intermediary, most commonly a personal service company. In brief, the impact of the changes means that the responsibility for determining whether the individual worker is an employee for tax purposes, has shifted from the intermediary to the engaging entity.

    If they determine that the individual would be an employee for tax purposes, they will be responsible for deducting income tax and national insurance contributions as the deemed employer.

    The current employment law landscape

    COVID-19

    The Coronavirus Job Retention Scheme came to an end on 30 September 2021. This means that in most cases, the employer and employee will go back to their earlier contractual arrangements unless a change is agreed.

    Mandatory vaccinations

    From 11 November 2021, anybody working or volunteering in a care home will need either to be fully vaccinated against coronavirus or fall under an exemption. This follows the implementation of the implementation of the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (the Regulations).

    The 16 September 2021 was the last date for care home workers to get their first dose of the vaccine so that they are fully vaccinated by the time the regulations come into force.

    A judicial review has been brought, challenging the requirements of mandatory vaccinations for care home workers.

    Brexit and immigration

    Since 1 January 2021, a new points-based immigration system has applied to non-EU and EU nationals who move to the UK to live and work.

    All non-British and Irish nationals coming to the UK to work must qualify under one of the categories specified in the UK immigration rules.

    Applications under the EU Settlement Scheme closed to EU citizens and their families who arrived in the UK before 11pm on 31 December 2020, on 30 June 2021 although it may still be possible to apply if it is possible to show there were reasonable grounds for not applying by 30 June 2021.

    The two main work visa options are either the skilled worker, or intra-company route. Migrants without settled or pre-settled status must be sponsored by an employer before they can apply for permission to enter or remain in the UK.

    Under the skilled worker route, job offers must meet a skills threshold and a minimum salary threshold, as well as minimum English language requirements.

    Employment tribunals

    Roadmap

    The Presidents of the Employment Tribunals in England and Wales released a roadmap in March 2021, which sets out the arrangements for listing new cases over the next few years in the employment tribunals.

    The roadmap confirms that the majority of cases will continue to be heard remotely as the default position, although this will vary from region to region and depending on the type of claim.

    A new ‘virtual region’ was launched in April 2021 in England and Wales to hear cases generated across all regions to deal with a backlog of cases.

    Other measures introduced by the tribunal include the appointment of 16 new legal officers, who are authorised to deal with matters falling within delegated powers, and the introduction of a new case management system to increase efficiency.

    Acas early conciliation

    There have been some changes to the Acas early conciliation process. From 1 December 2020, the standard early conciliation period has been extended from one month, to six weeks.

    The rules have also been amended to allow Acas conciliators to contact claimants to correct any errors on the early conciliation form during the conciliation period.

    Health and Safety Detriment extended to workers

    S.44 (1) (d) and (e) Employment Rights Act 1996 has been extended to give workers protection against detrimental treatment on health and safety grounds.

    Previously only employees had this protection. This only applies to detriments taking place on or after 31 May 2021.

    Gender pay gap reporting

    The gender pay gap reporting deadline for the 2020/2021 reporting period was extended to 5 October 2021 for qualifying employers in the private sector.

    Future expected developments

    Restrictive covenants

    A government consultation on the future of restrictive covenants concluded in February 2021. Possible reforms could include introducing mandatory compensation payable by the employer to the employee for the duration of the restricted period, or even the complete ban of non-compete clauses. The possibility of legislating non-compete clauses has also been raised.

    We will have to wait and see what comes out of the consultation and review any developments. Financial compensation for the restraint period is common in many European countries, and may be the direction of travel in this area.

    Pregnancy and maternity redundancy protection

    The government has stated it still intends to extend the redundancy protection period afforded to mothers on maternity leave ‘as soon as parliamentary time allows’. This is despite the long awaited new Employment Bill, which was expected to contain such changes, not being mentioned in this year’s Queen’s Speech.

    Previous proposals included that the requirement for an employer to offer those on maternity suitable alternative employment, where it is available, be extended from the date the employee notifies her employer of the pregnancy to six months after she returns from maternity leave.

    A private members bill which sought similar protections did not complete its passage through Parliament and will make no further progress.

    Flexible working

    A consultation has recently commenced which includes a number of measures to widen the scope of the right to request flexible working. The main change would be taking away the current qualifying period of 26 weeks’ service.

    Flexible working is likely to be a hot topic this year and we await the outcome of this consultation. The consultation remains open until 1 December 2021.

    Prevention of sexual harassment

    The government has confirmed it will introduce a new duty for employers to prevent sexual harassment and third- party harassment in the workplace. It will also look at the possibility of extending the time limit for claims brought under the Equality Act 2010.

    There is, however, currently no firm implementation date for this.

    Mandatory vaccinations for wider healthcare settings

    The Department of Health and Social Care has recently launched a consultation on extending mandatory COVID-19 vaccination to wider healthcare and care settings. This may include a requirement to have the flu jab. This consultation closes on 22 October 2021.

    Further support

    Please be aware that this is the top line information relating to the latest employment law developments. For more in-depth guidance or support around the issues covered in this article, book a free 30-minute consultation with our Employment team today.

    To check on the updates to employment law from last year, read our article employment law changes – preparing for April 2020.

    This content is correct at time of publication

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