Welcome to the November edition of the AdviserPlus newsletter.
In this month’s newsletter, we will remind you of the key upcoming dates as well as considering the importance of being prepared in the event the Government has to implement their Plan B in the response to Covid-19.
Following recent guidance of the Court of Appeal we’ll look at the importance of considering the approach to determining when a limited right of substitution is consistent with the obligation of personal performance. We will also look at the preliminary findings of the Gender Pay Gap reporting and finally, the new scale-up visa route open to employers.
Employment law dates at a glance
Compulsory Double Vaccinations
From 11 November 2021 all workers over 18 (unless medically exempt) employed to work in care homes in England, registered by the CQC, providing personal or nursing care, must be double vaccinated. This extends to others coming into the home to provide services.
Following a recent announcement by Sajid Javid this month, this mandatory requirement will be extended to cover all NHS staff in England from April 2022. Each of the four UK nations will make its own decisions on the issue. Scotland, Wales and Northern Ireland have not yet made any proposals to make Covid jabs compulsory for NHS workers or care home staff.
24 December 2021 is the deadline for care home workers and volunteers that have provided a self-certification of exemption from the Covid vaccine to confirm their exemption status via the NHS Pass.
SSP Rebate Scheme
All claims under the SSP rebate scheme, which closed on 30 September 2021, must be made by 31 December 2021 in order for employers to get money back under this scheme.
Amended Right to Work Checks
From 5 April 2022 employers must revert to in person checks of right to work documentation.
National Living Wage
From 5 April 2022 the National Living Wage will rise by 6.6% from £8.91 per hour to £9.50 per hour.
Other rates include:
21–22-year-old will rise by 9.8% from £8.36 to £9.18
18–20-year-old will rise by 4.1% from £6.56 to £6.83
16-17-year old will rise by 4.1% from £4.62 to £4.81
Apprentice Rate will rise by 11.9% from £4.30 to £4.81
COVID-19 Autumn/Winter Plan B
Over the coming months the Government will aim to sustain the progress made and prepare the country for future challenges, while ensuring the NHS does not come under unsustainable pressure. The Government does have a Plan A which is designed to steer us through Autumn and Winter 2021-22 however, as we have repeatedly seen, plans have a habit of changing rapidly and unexpectedly and with winter always a challenging time for the NHS, along with a possibility that the impact of flu (and other seasonal viruses) may be greater than usual, the Government is keeping a close eye on the data and has taken the reasonable step of undertaking contingency planning in case Plan A is not sufficient to keep the virus at manageable levels.
So that the public and businesses know what to expect, it is important to be familiar with the details stated within the Government’s Plan B and continue to be familiar with the up-to-date Working Safely guidance on how employers can reduce the risks in the workplace. By law, business must not ask or allow employees to come to work if they are required to self-isolate. In addition, business are being encouraged to:
- Ask employees to stay at home if they are feeling unwell.
- Ensure there is an adequate supply of fresh air to indoor spaces. Businesses should identify any poorly ventilated spaces, for example by using a CO2 monitor, and take steps to improve fresh air flow in these areas.
- Provide hand sanitiser to enable staff and customers to clean their hands more frequently, and clean surfaces which people touch regularly.
- Display an NHS QR code poster for customers to check in using the NHS COVID-19 app, so they are alerted if there’s an outbreak and can take action to protect others.
- Consider using the NHS COVID Pass.
Worker status and the obligation of personal performance
Whether an individual meets a ‘worker’ status is often down to the point on whether there is an obligation to perform work personally. In a recent case of Stuart Delivery Ltd v Augustine the Court of Appeal has decided the courier’s ability to send work to other couriers was too limited. They have held that the courier was a worker and have ordered the company to pay costs associated with ‘worker’ status i.e. holiday pay and pension contributions.
Therefore, when considering whether an individual is a ‘worker’ where there is a limited ability to appoint a substitute, the issue is whether the nature and degree of any limit is consistent with any obligation of personal performance. In addressing this issue, it is necessary to consider the extent to which the employer is interested in who carries out the work.
Failure to report Gender Pay Gap and preliminary findings
It has been reported that around one in ten employers have failed to report their data even though we are now one month on from the reporting deadline. This is a 6.6% drop on the number reported on time in 2018-19, the last comparable year available. Failure to report gender pay data can result in a court order, leading to a public investigation and a potentially unlimited fine.
From the information that has been submitted, Charles Cotton, senior policy adviser for reward and recognition at the CIPD has said: “Evidence suggests that economically, women have been adversely and disproportionately affected by the Covid-19 pandemic and now is not a time to be taking the foot off the pedal when it comes to equality in the workplace.” As such calls for accompanying narratives and action plans to be mandatory alongside the reporting of gender pay gap figures are being made. Charles Cotton also added: “Employers need to fully engage and understand the reason for any gap and be transparent about how they plan to tackle it and improve gender equality in the workplace.”
New plan for immigration 2021/2022
The UK government is aiming to provide a streamlined and seamless experience for people coming in the UK whilst ensuring national security and has recently provided more information on its previously announced 2022 immigration plans including a scale-up route. This visa would give foreign nationals the ability to work and live in the U.K. without having to obtain a sponsorship.
Businesses will be able to use a new visa route if they can show:
- An annual average revenue or employment growth greater than 20% over a three-year period
- A minimum of 10 employees at the start of the above three-year period
Scale-up visa applications will be open in Spring 2022 to applicants who:
- Pass the relevant language proficiency requirement
- Have a high skilled job offer from an eligible business with a salary of at least £33,000.
Note: The above guidance was correct at the time of writing this article on 15/11/21.
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.