Two years on from the start of the pandemic, many employers will continue to be dealing with its implications in the months ahead. From handling tricky issues in the workplace as mandatory requirements are lifted, to managing staff suffering from long-COVID, these continue to be challenging times for employers.
Regarding developments unconnected to the pandemic, April is the usual month for increases in the statutory rates and limits. This year is no exception but we also have the controversial increase in National Insurance Contributions which was confirmed in the Spring Statement 2022 on 23 March 2022.
We have published our Handy Fact Card 2022/23 which also has the details of the statutory rates and limits.
Please click here to view our online version of the Handy Fact Card. You can bookmark this version for future reference.
Increase in Statutory Rates and Limits
From 1 April 2022:
The National Living Wage (payable to workers aged 23 and over) and the National Minimum Wage increased and is now:
- For workers aged 23 and over £9.50
- For workers aged 21-22 £9.18
- For workers aged 18-20 £6.83
- For workers aged 16-17 £4.81
- Apprentice rate £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 increased 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 (SSP) increases to £99.35.
- For dismissals on or after this date, a “week’s pay” which is used to calculate statutory redundancy pay and the Employment Tribunal basic award increases to £571. The maximum compensatory award for unfair dismissal increases to £93,878 or 52 weeks’ pay, whichever is the lower.
- The range of awards for injury to feelings in cases of discrimination or detriment for whistleblowing, commonly known as the “Vento bands”, increase from:
- £990 to £9,900 for the lower band (less serious cases)
- £9,900 to £26,600 for the middle band (cases not in the upper band)
- £26,600 to £49,300 for the upper band (most serious cases)
A higher amount may be awarded in exceptional cases and these bands apply in respect of claims presented on or after 6 April 2022.
- Employers will be under a duty to provide suitable Personal Protective Equipment (PPE) to “workers” not just employees where there is a health and safety risk. The prohibition on charging for PPE will also be extended to “workers”. This follows a case from 2020 where the High Court held that the UK had failed to implement properly two EU Directives on health and safety.
Employers need to identify those workers who reach another age threshold and who will benefit from the NMW increases. They will also need to inform members of staff who are about to take family leave about the increase in rates.
Finally, employers will need to be aware of the new limit on a “week’s pay” if embarking on redundancy exercises in the weeks and months ahead.
Increase in National Insurance Contributions
At a time of a cost of living crisis, there were widespread calls for this increase to be deferred or not implemented at all.
However, in the Spring Statement 2022 on 23 March 2022, the Chancellor confirmed that from 1 April 2022, there is 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.
Also announced in the Spring Statement 2022 was an increase in the national insurance threshold (effective from July) which it is hoped will lessen the impact of the NIC increase for many people.
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 was 4 April 2022.
For the public sector, the “snapshot date” is 31 March 2021 and the deadline for reporting and publishing was 30 March 2022.
As at 8 March 2022, it was reported that only a quarter of UK companies had published their gender pay gap data.
Note that on 21 March 2022, the Equality and Human Rights Commission updated its guidance on Gender Pay Gap reporting.
Immigration Right to Work Checks
The end date of the temporary adjusted right to work checks introduced at the start of the pandemic (the COVID-19 concession) permitting employers to check right to work documents using a video call and email has now been deferred from 6 April 2022 to 30 September 2022. For more details and the implications for employers click here.
Changes to SSP relating to COVID-19
Since 25 March 2022, there is no longer an entitlement to SSP from day 1 of incapacity for work where absence is related to COVID-19, and the “waiting period” for SSP has reverted to 3 days. The “day 1” entitlement was introduced temporarily to ensure that the SSP rules did not discourage staff from isolating when they had COVID-19, but ended at midnight on 24 March 2022. However, separate regulations have ensured a transitional provision where the period of incapacity began on or before 24 March 2022 – the day 1 rule will continue to apply in such cases.
At the same time, since 25 March 2022, the statutory provisions which “deemed” staff to be “incapable of work” for the purposes of SSP due to having COVID-19 or following self-isolation rules, whether or not they had symptoms, were also revoked. This means that a person isolating under legislation or guidance but without symptoms themselves are no longer entitled to SSP.
Both these provisions apply to England, Scotland and Wales, despite the devolved nations still currently having different rules on self-isolation. In England there was a short gap prior to 1 April where Government Guidance had stated that despite there no longer being a legal obligation to self-isolate, positive cases should stay at home even if they did not have symptoms. For other devolved nations where there is still an obligation or guidance to self-isolate, such as unvaccinated close contacts of positive COVID-19 cases in Scotland or asymptomatic positive COVID-19 cases in Wales, the fact that they will no longer qualify for SSP leaves both staff and employers in a difficult position.
Changes to COVID-19 legislation and guidance
In England the legal requirement to isolate for a minimum of 5 days was revoked on 24 February 2022, and replaced with Government Guidance – albeit that the guidance was almost identical. This left employers in a tricky position with regard to those well enough to work but testing positive for COVID-19. As of 1 April 2022, the guidance to isolate has been replaced with Guidance for People with Symptoms of a Respiratory Infection, including COVID-19 and Living safely with Respiratory Infections, including COVID-19.
In the guidance there is still the implication that those who test positive, even without symptoms, should stay away from the workplace, avoid contact with other people for 5 days, work from home where possible, and talk to their employer about options available if they are unable to work from home. This will be a continuingly difficult path for employers to navigate if staff test positive but remain asymptomatic.
In England the Government has also produced Guidance on Reducing the spread of respiratory infections, including COVID-19, in the workplace. This includes guidance on looking out for symptoms, encouraging vaccination, increasing ventilation and extra cleaning. However, it also states, for example, that “Employers, in accordance with their legal obligations, may wish to consider how best to support and enable their workforce to follow this guidance as far as possible”, and “Employers may wish to consider the needs of employees at greater risk from COVID-19, including those whose immune system means they are at higher risk of serious illness from COVID-19.”
The HSE has also updated its COVID-19 workplace guidance here. This guidance includes the point that while HSE no longer requires specific control measures, it is still a requirement to consult workers and their representatives on changes that might affect health and safety.
There is also new COVID-19 Guidance for adult social care and particularly a summary of changes for adult social care providers which includes twice-weekly asymptomatic testing and other testing and isolation guidance for particular work settings.
Wales has also produced Guidance for Businesses, employers and organisations and new COVID-19 workplace testing guidance following the end of free workplace lateral flow testing. The latter states:
“People who have COVID-19 are no longer legally required to self-isolate. Anyone who has COVID-19 symptoms, or has tested positive, should follow the public health advice to stay at home. They should avoid contact with other people. They should not attend work. If a worker is unable to work from home, you should talk to them about the options available to them. For example, they may be entitled to statutory sick pay.”
Note however that because of the SSP provisions applying to England, Scotland and Wales, employers may be in a difficult position regarding sick pay for those who are asymptomatic. Businesses in Wales are still required to carry out a specific COVID-19 risk assessment. However, the Welsh Government website says that if the current public health situation remains stable, all restrictions will be removed on 18 April 2022.
Upcoming EAT hearing
We have had a number of Employment Tribunal pandemic-related decisions arising out of health and safety dismissals. One of the first cases was Rodgers v Leeds Laser Cutting Ltd and the issue was whether the dismissal was automatically unfair for health and safety reasons. Permission to appeal was given and the EAT hearing is on 12 April 2022. For more details of the Employment Tribunal decision see our previous article here.
This is the first pandemic case to go to appeal and the EAT decision will be awaited with interest.
Our next Employment webinar will take place on 12 May 2022 on the topic of “Talent Management: Recruitment, Engagement and Retention”. More details of the topics to be covered, speakers and timings will be included in our invitation which will be sent out shortly.
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