November 2021 Employment Law Bulletin
Welcome to our Employment Law Bulletin for November 2021.
This month’s bulletin focuses on a number of key developments and of course the ever changing landscape in relation to COVID vaccinations.
Increase in the National Living Wage and National Minimum Wage
The increase of rates for the National Living Wage and National Minimum Wage was announced last month. From the 1st April 2022 the rates will increase as follows:-
- National Living Wage for workers aged 23 or over will increase to £9.50
- National Minimum Wage for workers aged 21-22 will increase to £9.18, workers aged 18-20 will increase to £6.83, and workers aged 16-17 will increase to £4.81
- Apprenticeship rates will increase from £4.30 to £4.81
The recommendations for the increases come from the Low Pay Commission. The intention is to reach the Government’s target of two thirds of median earnings by 2024. The increase is intended to support low paid workers in securing their living standards when there is a record number of vacancies and employment is returning to normal following the pandemic.
Although there is an increase in the National Living Wage of 6.6%, the Living Wage Foundation has published their Real Living Wage rate of £9.90 per hour. The voluntary scheme will see their workers benefit from a rise of 40 pence above National Living Wage from the 15th of this month.
It is believed that 9000 employers are currently signed up to the Real Living Wage, with 3000 joining the voluntary scheme during the course of the pandemic. Although there is no legal requirement for businesses to pay the Real Living Wage as the law confirms that only National Living Wage and National Minimum Wage are a requirement, it is something that more businesses are considering in a post-pandemic economy.
Skills and staff shortages
The COVID19 pandemic is believed to have caused the biggest changes to how we work, and skill sets since World War 2.
Surveys conducted by the British Chamber of Commerce published earlier this year have found that up to 70% of the companies surveyed stated that they had vacancies that they had trouble filling.
Recent polls have found that up to 88% of employers are concerned by labour shortages, with up to 65% of employers concerned by skill shortages.
Since the beginning of the COVID19 pandemic it is clear that both employees and employers are looking for ‘more’ as COVID has forced both companies and individuals to reassess what they ‘need’. This has led to many ‘soft skills’ valued higher e.g. initiative and adaptability from both an employee and employer perspective.
With major issues predicted to increase in finding suitable candidates with appropriate skill sets, employers are advised to review their salary and benefits as well as their general terms and conditions of employment to ensure they are offering attractive packages to fill any vacancies.
Another major concern that has been highlighted from recent surveys regards retaining valued workers. Again, businesses are advised to review terms and conditions of employment for their current employees as well as for potential candidates. As skills are evolving, it is advisable to invest in current employees to ensure the businesses are able to retain them and also rely on them in a post-pandemic world. By investing in current employees, it will ensure that they feel valued and remain within your business.
Mandatory vaccinations
The UK, unlike the recent announcement from Austria, has not mandated vaccination for all residents. However the Government has imposed mandatory vaccinations, initially within the Care Sector but extending to the Health and Social Care Sectors in 2022.
As of 11th November 2021 it became unlawful for any Care Quality Commission Regulated care home to employ anyone who has not been fully vaccinated, unless a medical exemption applies. This extends beyond front line care staff to not only reception and administrative staff but also those visiting care homes to provide additional services such as hairdressers, beauticians, and trades people for example.
It is possible therefore for care home workers who have not been vaccinated to be dismissed fairly as continuing to employ them without vaccination would be unlawful and in breach of a statutory enactment. It is still necessary however for care homes to follow fair processes when terminating the employment of any employees who have not been vaccinated and who refuse to be vaccinated.
The Government has now further announced that this decision will be extended to health and social care workers. This is a significant extension and will incorporate the NHS in its entirety together with private businesses working within this sector such as physiotherapy and dentists. The ruling will also extend beyond frontline medical staff to ancillary staff such as porters, cleaners and receptionists.
Based on the staging date for vaccinations, any currently unvaccinated employees will need to have received their first vaccine by 21st January 2022 in order to be able to fulfil this requirement.
Moving forwards staff recruitment within these sectors will need to adapt to this by clearly stipulating in job advertisements and during the recruitment process that the role is subject to satisfactory proof of vaccination status.
One indirect consequence of this ruling is that it may be lawful to ask medical questions about the employee’s vaccination status at the interview stage whereas more generally employers are prohibited from asking such questions until a job offer has been made.
COVID and Christmas parties
This December will signal the first Christmas party season with COVID-19 as a risk factor, with 2020 not being possible to hold Christmas parties.
Many businesses have either not organised a Christmas party of have cancelled them amid rising case numbers. Many businesses are reluctant to make significant arrangements in case there are further restrictions when the relevant time comes, however many venues now offer COVID refund guarantees.
If you do decide to hold a Christmas party, then the most significant risk is that your entire workforce is hit at the same time with COVID which would be likely to cause significant risk to your business. In addition employers have a duty to protect the health and safety of its employees in the workplace. A Christmas party will constitute an extension of the workplace, even if the event takes place outside of working hours and away from company premises.
When questioned recently, the Health Secretary Sajid Javid suggested that employers should ask employees to take a lateral flow test prior to attending a Christmas Party. In addition, much like attending the workplace, employees should be asked not to attend if they feel unwell with symptoms that could be COVID-19. Equally employees who do not feel comfortable attending such an event should not be forced to or in turn disciplined or otherwise put to a detriment for their non-attendance.
Businesses should think very carefully whether they want an all staff Christmas party, or perhaps seek to reduce the risk of potential disruption to the business by organising smaller teams based events for example.
Interesting cases
Thompson -v- Scancrown Limited T/A Manors – Claimant was awarded in excess of £180,000 following an indirect discrimination claim after she returned from maternity leave and her flexible working request was turned down without any meaningful consultation.
Stuart Delivery Ltd v Augustine- The right of appointing a substitute is a significant factor in determining employment status. Here Mr Augustine, a courier, was able to use the Respondents own mobile application to offer out to other couriers that had been sanctioned by the Respondent, any delivery allocated to him that he was unable to fill. The Respondent argued this was an effective act of substitution and in turn that Mr Augustine was genuinely self-employed and not a Worker. The Court of Appeal disagreed citing the fact that the right of substitution was limited by the Respondent to a pre-approved pool of couriers and if no other courier accepted the job then responsibility for it remained with Mr Augustine.
Augustine v Data Cars Ltd- The case considered allowable deductions from the National Living Wage. Mr Augustine (no relation to the above matter) argued that he hadn’t been paid at the appropriate rate as the employer had expensed him rental costs incurred by Mr Augustine for the use of a company car and uniform, neither of which he was obliged to take but which allowed him to undertake a higher level of work.
The Respondent argued that it was Mr Augustine’s choice to hire these items and so should not be deductible expenses under the relevant legislation. The initial employment tribunal accepted that these items were not allowable deductions and should not act to reduce the calculation of Mr Augustine’s wages. The EAT however disagreed and did not consider it was relevant whether Mr Augustine had a choice or not whether to hire these items, the overriding factor was that both items were in connection with his employment and therefore the cost of them should be offset against what Mr Augustine was paid in considering whether or not Mr Augustine had been paid at the appropriate rate.
Employment Workshops at mfg Solicitors
The dates for our Employment Workshops throughout 2022 have been released!
- 9th December 2021
Employment Law Update and the legal implications of the pandemic to include working from home/hybrid working, vaccinations, flexible working and redundancies
- 17th February 2022
Recruiting the right way, different types of Contracts, restrictive covenants, the implications of status and the Gig Economy and IR35
- 7th April 2022
Employment Law Update, managing sickness absence in the workplace, stress and mental health
- 2nd June 2022
Employment Law Update, managing disciplinary procedures and dismissal and Settlement Agreements
- 22nd September 2022
Employment Law Update and dignity in the workplace
- 10th November 2022
Employment Law Update and managing grievances in the workplace
Whilst under normal circumstances our Employment Workshops are £15 per person and include a light lunch, for the safety of our staff and clients they will initially take place remotely. The charge will be £10 per person. The training will be via Teams from 9.00 am until 12.00 pm.
To register, please email our Marketing Manager at ellizabeth.armstrong@mfgsolicitors.com.
Contact mfg Solicitors
The Employment team at mfg Solicitors are specialists with a significant amount of experience assisting clients with their employment and HR issues, ensuring that the advice to businesses is commercial, practical and relevant to their individual requirements.
If you have any employment or HR issue, please do not hesitate to contact Sally Morris on 01905 610410 or at sally.morris@mfgsolicitors.com.
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