364: What’s coming up in Employment Law?

COVID-19 vaccination no longer a condition of employment for health and social care staff

Following consultation, the Government has now revoked the regulations which made COVID-19 vaccination a condition of employment for health and social care staff. The revocation regulations came into force on 15 March 2022, so anyone working or volunteering in care homes is no longer required to be vaccinated. Operational guidance for care homes and other social care settings will be updated accordingly. Despite this decision, the Government considers that workers in these sectors have a professional duty to be vaccinated and will continue to work with stakeholders and regulators to increase vaccination uptake. A separate consultation by the Department of Health and Social Care is considering amendments to strengthen the Code of Practice on the Prevention and Control of Infections.

Compensation limits for some Tribunal awards increasing

The Employment Rights (Increase of Limits) Order 2022 have increased compensation limits for certain Tribunal awards with effect from 6 April 2022. These increases are based on the September retail prices index which grew by 4.9% since the preceding year. The limit on a week’s pay rises from £544 to £571 and the maximum compensatory award for unfair dismissal goes up from £89,493 to £93,878. The maximum basic award for certain unfair dismissals, including health and safety dismissals, rise from £6,634 to £6,959. These new limits apply where the effective date of termination of employment falls on or after 6 April 2022.

How to handle employees suffering bereavement

Acas has published updated guidance to help employers understand employees’ rights after suffering bereavement of any nature and to provide general advice on dealing with bereavement in the workplace. Potentially relevant statutory rights include dependant’s leave, parental bereavement leave, maternity leave, shared parental leave and paternity leave, as well as associated rights to pay. Where an employee has no legal right to time off, and their employer does not offer compassionate leave, the guidance recommends use of annual leave, sick leave or unpaid leave. Case studies are included to illustrate how to support employees, emphasising the need to tailor this support because grief affects everyone differently. Acas also recommends that employers implement a workplace bereavement policy covering time off and pay.

Will ethnicity pay gap reporting become mandatory?

The House of Commons Women and Equalities Committee has held a one-off session looking at the case for mandatory ethnicity pay gap reporting. In its report of this session, the Committee recommends that the Government should introduce mandatory reporting by April 2023. Whilst recognising the practical and statistical challenges of collecting ethnicity pay gap data, such as the data protection implications of small sample sizes, the Committee highlights that businesses are generally supportive of mandatory reporting. The Government has not yet issued a response to its January 2019 consultation which stated that it was time to introduce ethnicity pay gap reporting. Recent analysis of company pay gap disclosures by HR DataHub indicates that only half the number of companies that reported on their ethnicity pay gap in 2020 (129) reported in 2021 (64).

Will long COVID be considered a disability?

Given the absence of clear legislative protections for people with long COVID, the Equality and Human Rights Commission has recommended that organisations should follow existing guidance on making reasonable adjustments for employees suffering with long COVID-19 symptoms so as to avoid the risk of inadvertent disability discrimination arising for the purposes of the Equality Act 2010. It is not yet clear to what extent long COVID will meet the statutory definition of a disability but the usual legal test on its substantial effect on the ability to carry out normal day-to-day activities remains the test.  The TUC and other representative bodies have asked the Government to classify the condition as a deemed disability since, as it the case such as with cancer or HIV, as it is clear that many workers are suffering long-term symptoms which may affect performance, such as cognitive difficulties and fatigue, although these symptoms vary and can fluctuate significantly.

Updates on how to avoid unlawful discrimination while preventing illegal working

Following consultation on proposed amendments, the Home Office has issued an updated code of practice on avoiding unlawful discrimination while preventing illegal working which came into effect from 6 April 2022. This updates the previous version issued in July 2021. Most of the amendments are for clarification purposes, including clarifying the meaning of terms used, defining what amounts to unlawful discrimination, and how to avoid it when carrying out right to work checks. Additional guidance covers fair recruitment processes, online checks, and information for employees about the obligation to conduct right to work checks. The revised version applies to employment commencing on or after 6 April 2022 and where a repeat check must be carried out on an existing worker on or after 6 April 2022.

Eight commitments for employers to adopt to ensure a fair and inclusive workspace

Leaders as Change Agents, a business-led government-sponsored committee, has published a guide setting out eight commitments that employers can adopt to ensure a fair and more inclusive workplace. These commitments are aimed at helping employers implement genuinely open processes in order to attract the widest choice of internal and external candidates. The eight commitments are: empowering employees; diversity, equality and inclusion; supporting employees’ growth and development; showing commitment to employees through HR policy and ensuring employee engagement; giving employees the opportunity to participate in decisions affecting their jobs; encouraging work-life balance; fairness; and rewarding and reinforcing positive behaviours.

The adjusted right to work checks end-date has been pushed back

The end-date for adjusted right to work checks during the coronavirus pandemic has now been deferred to 30 September 2022 (not 5 April 2022 as previously announced by the Home Office). This means that employers can continue to conduct right to work checks over video calls, and potential employees can still send scanned documents or photos rather than originals. No retrospective checks will be needed on employees who had a COVID-19 adjusted check between 30 March 2020 and 30 September 2022. The extension is also to give employers time to finalise new arrangements with commercial identity service providers for digital checking of British and Irish citizens holding a valid passport, which is permitted from 6 April 2022.