Newsletter: February 2022

Welcome to the February edition of the AdviserPlus newsletter.

In this month’s newsletter we will look at what’s coming up in April 2022 and some key dates you need to diarise.

We will highlight the biggest news which came out late January concerning the u-turn on mandatory vaccinations for NHS staff. We will also take a look at some recent case law regarding unfair dismissal and Coronavirus and whether ‘fear of coronavirus’ is covered by belief under the Equality Act 2010, and what as employers we can take from the learnings. We will also look ahead to a lovely long weekend in June to celebrate the Queen’s jubilee and what workforce planning that may involve now.

Employment law dates at a glance 

Gender Pay Gap Reporting: From 4th April 2022 (30th March 2002 for public sector employers) organisations with more than 250 employees are required to publish their gender pay gap report on their company website as well as the government’s gender pay gap portal. Employers have the option of providing an explanation and outlining the steps that are being taken to address the pay gap.

Amended Right to Work Checks: From 5th April 2022 employers must revert to in person checks of right to work documentation. The government has not yet confirmed what the expectation will be in the future, but it would be wise to assume that right to work checks may need to take place in person once again rather than using checks via video and using scanned documentation as opposed to originals.

National Living Wage: From 5th April 2022 the National Living Wage will rise by 6.6% from £8.91 per hour to £9.50 per hour.

Other rates include:

  • Apprentice rate will rise by 11.9% from £4.30 to £4.81
  • 16-17 year old rate will rise by 4.1% from £4.62 to £4.81
  • 18-20 year old rate will rise by 4.1% from £6.56 to £6.83
  • 21-22 year old will rise by 9.8% from £8.36 to £9.18

Statutory rates of pay: From 11 April 2022 the rates for Statutory Maternity Pay, Statutory Paternity Pay, Statutory Adoption Pay, Statutory Shared Parental Pay, Statutory Parental Bereavement Pay and Maternity Allowance will all increase from £151.79 to £156.66 per week.

The rate of Statutory Sick Pay will also increase from £96.35 to £99.35.

Jubilee Bank Holiday: On Friday 3rd June 2022 it is important to be aware that there will be an extra bank holiday in 2022 to celebrate the Queen’s Platinum Jubilee, taking place on Friday 3rd June. The late May bank holiday is also moving to Thursday 2nd June to coincide with the celebrations.

Employers need to consider their resource planning carefully over this 4-day weekend as it is likely to also see an increase in annual leave requests. Whether you are legally required to honour the extra bank holiday will depend upon the wording of the contract of employment. If a contract states that the employee will be entitled to x days annual leave ‘plus eight bank holidays’ then there is no legal entitlement to an extra bank holiday. However, if the contract states that the employee will be entitled to x days annual leave ‘plus bank holidays’ then there would be an entitlement to an extra bank holiday.

U-turn on mandatory vaccines for NHS staff 

The government has done a last-minute u-turn on the plan to make COVID-19 vaccination mandatory for NHS staff in England. Announcing the decision on 31st January, England’s health and social care secretary, Savid Javid, said that the balance of opportunities and risks of the policy had shifted with the dominance of the omicron variant, with the population being a whole better protected against the need for hospital admission, and with omicron being ‘intrinsically less severe’ than delta. Savid Javid told MP’s ‘whilst vaccination remains our very best line of defence, I believe it is no longer proportionate to require vaccination as a condition of deployment by statute’. The regulations are now therefore intended to be revoked, subject to public consultation and parliamentary approval.

He will also remove vaccination as a condition of working in care homes, a policy that has been in place since last year and is estimated to have resulted in 40,000 staff leaving their posts in this sector.

Unfair dismissal and COVID-19 vaccination

In the case of Allette v Scarsdale Grange Nursing Home Ltd an employment tribunal has held that a dismissal in February of 2021 due to an employee who had refused to be vaccinated (whilst there was no statutory obligation requiring them to be vaccinated) was fair. They concluded that, in the circumstances, the employer’s decision to make vaccination mandatory for staff providing close personal care to vulnerable residents was a reasonable management instruction and the claimant’s refusal to be vaccinated was not reasonable. The tribunal did stress that its decision was entirely based on the particular facts and circumstances of the case and should not be taken as a general indication that dismissal for refusing to be vaccinated against COVID-19 is fair. It does, however, give some insight in to the factors that a tribunal is likely to consider when faced with a dismissal of an unvaccinated employee.

Fear of coronavirus not protected under UK law

In X v Y a Tribunal has decided that an employee’s fear that they may catch COVID-19 and have the need to protect themselves and others is not a protected belief under the Equality Act. The Tribunal held that the fear did not amount to a belief but a reaction to a threat of physical harm and a widely held opinion based on the present information available. In this case the fear that the claimant had related to herself and her own steps to protect others, rather than a belief in wider terms. This case is the first of its kind, where an employee has sought to establish a protected belief under the Act.

What will be important in any defence of such arguments is that employers encourage employees back to work now the working from home guidance is now lifted by taking reasonable steps to reduce the spread of the virus in the workplace and protect their employees as far as possible.

This could include:

  • Having safety measures in place such as hand sanitiser and PPE and encouraging social distancing and mask wearing where possible
  • Being ready to listen to any concerns employees have in relation to returning to work or COVID-19 safety concerns and addressing these wherever possible
  • Ensuring the position on COVID-19 related sickness absence is clear and available to employees, and
  • Ensuring policies in relation to sickness absence and holidays are up to date.

What’s coming up

The Courts and Tribunals (Online Procedure) Bill

The Courts and Tribunals (Online Procedure) has been published and had its first and second reading in the House of Lords. The purpose is to provide rules of court for online proceedings in Civil and Family Courts and Tribunals.

The new procedure will use a mix of technology, conciliation and judicial resolution to create a quick dispute resolution process.

Tipping – new legislation on the way

It is expected that new legislation will be introduced to require employers to pass on all tips to workers. The new legislation will:

  • Require all tips, gratuities and service charges to be passed on to workers without deduction
  • Require fair and transparent distribution of tips where employers have significant influence over the distribution
  • Introduce a new right for workers to request information relating to tipping records to allow credible claims to be made at tribunal


Note: The above guidance was correct at the time of writing this article on 16/02/22. This does not constitute legal advice and is for information purposes only.

If you have any questions regarding the content of this newsletter or would like more information to support your business with the changes, please get in touch.


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