Introduction – Legal update for September 2022:

SYLO| Beyond HR. are pleased to provide you with the latest employment law updated.

Firstly, we hope that you have been able to make the best use of the sunshine and have got in some much-needed relaxing over this very hot summer, with the temperatures reaching record breaking heights we are sure more than a few of you are glad to see summer begin to draw to a close. Moving into this third quarter, little has changed from a legal standpoint, however, as what seems to be becoming the norm there are lots of developments; socially, economically and environmentally which companies should be aware of to be able to support their employees fully. We hope you find this update useful to help navigate your business though the closing months of this year.

  • Hybrid working

As we have brought up in the last number of updates, hybrid working continues to be on the rise, with companies and employees utilising the benefits of the modern way of working. We are sure you are aware by now of the number of potential benefits from the use of hybrid working as well as the fact that there is no ‘one-size fits all’ approach to be followed. If you are still on the fence about hybrid working and want to find out how you could start to shift to a different way of working, then check out our YouTube video ‘Are you prepared for Hybrid Working?’.

  • Right to work checks

Due to COVID-19, temporary measures were put in place to allow right to work checks to be carried out online, eliminating the need for face-to-face verification before allowing a new employee to start work. As from 1st of October 2022, there will be a permanent system of digital right to work checks which will replace these temporary measures. This new system will be similar if not identical to the temporary process used throughout COVID-19, so it should be easy for employers and employees to carry out these checks when necessary. However, if you do need some support or have not used the digital service SYLO are happy to support you with this small but vital part of the onboarding process.

  • Real living wage

The Real Living Wage gives the hourly rate employees should be given as a way for them to meet the cost of living here in the UK. Although this is not a legal requirement over 10,000 employers in the UK voluntarily pay their employees the Real Living Wage or higher. Currently this wage is £9.90 per hour across the UK, however there is a higher rate of £11.05 in London. On the 22nd of September this year, the new pay rate will be announced, hopefully taking into consideration current cost of living and inflation. There are a number of benefits for both the employee and employer when paying Real Living Wages to all employees, including becoming a Living Wage Employer. Keep an eye out for the new Real Living Wage announcement, we will be posting the details on LinkedIn so you don’t miss it.

  • Cost of Living increase

There is no doubt that the rise in cost of living is going to make life extremely difficult this year. Employees and employers alike have and will be faced with increased bills, outgoings, and overheads as well as the imminent NI levy which was announced in April.

It is likely that many employees impacted by the cost-of-living squeeze may naturally begin to look to the jobs market to see if some financial gains can be made by switching jobs. Retention, will therefore be a key focus for employers in the coming months, balanced of course with affordability. Employers may wish to consider taking some proactive measures to help mitigate this, if they feel there may be cause for concern around staff retention. A good starting place is to undertake a salary and benefits market review/benchmarking exercise to ensure that your current employee offering is fair, reasonable, and competitive for your particular sector and/or, in relation to your competitors. Ensuring you are regularly communicating all that you offer to your employees is also key, such as your employee benefits (including any non-financial benefits). Employee wellbeing will also be key, particularly thinking about what support you may be able to offer your employees in the form of financial wellbeing, such as access to help and support around debt management and budgeting skills.

You can watch our recent webinar recording which explores Wellbeing in the Workplace, and financial wellbeing in particular, in more detail.

Please do speak to your HR Lead if you would like to explore further how we can support you with retention, or, more generally, the impacts of the cost-of-living increase on your business and your people.

  • Holiday pay for permanent “part-year” workers

The long-awaited Supreme Court judgment has been unanimously delivered in the case of Harpur Trust v Brazel, confirming that whether a permanent worker works a full or part year they are entitled to 5.6 weeks’ paid holiday entitlement.

Where weekly pay varies, you should calculate holiday pay based on an employee’s average weekly earnings over the previous 52 paid weeks.

When you calculate the amount of money you paid your worker, do not include the weeks they didn’t work. It should also not include any weeks where “normal” pay wasn’t given, for example, if they were on sick leave so given sick pay.

You can go back a maximum of two years (104 weeks) to obtain the relevant 52 weeks’ pay data. If you don’t have 52 weeks’ data, then the reference period becomes the number of weeks’ worth of data available.

If this affects any of your workforce and you would like some further advice as to how this works in practice, please contact us on enquiries@sylobeyondhr.com

  • Employee wellbeing in extreme heat

With temperatures this year reaching new hights, employers have had to rethink as to how to look after their employees. Although there is no maximum temperature for workplaces in the UK employees do have rights to safe working conditions, and we think it’s fair to say that some of the heat we have experienced over the last few months has made that a bit difficult at times.

The heatwaves we have encountered has caused ACAS along with other employment heads to issue tips for employers to help manage the workplace challenges which have arisen from the hot weather. These tips are as follows;

  • Temperatures should be reasonable in both office and home working environments; employers can carry out thermal comfort risk assessments to evaluate the potential risks of the hot weather.
  • The use of fans and air conditioning units to keep cool and blinds and curtains to block out the sun.
  • Supplying suitable drinking water.
  • Altering dress codes to ease employees discomfort.
  • Understanding transport that might be affected by the weather and providing flexible work if necessary.
  • Understanding which employees might be more ‘at risk’ than others, and making necessary adjustments to support them.

 

  • Potential upcoming Developments

Pregnancy and Maternity Redundancy Protection Bill

We are still waiting for a date as to when this legislation will be laid before Parliament, there is still quite a lot to do before it is enacted. The Government have said that it will be brought forward once parliamentary time allows.

As a reminder, the Government is proposing to introduce measures to increase protections against redundancy for the following individuals:

  • Pregnant employees, once they have advised their employer of their pregnancy
  • Employees returning from maternity or adoption leave within the previous six months
  • Parents returning from shared parental leave.

The proposals are in response to an earlier (pre-pandemic) consultation on pregnancy and maternity discrimination. An employee at risk of redundancy while on maternity, adoption, or shared parental leave has the right to be offered any suitable alternative vacancy that is available.

Flexible working – proposal to become a ‘Day One’ right

There have been no further updates on this matter, but it is still very much in the pipeline for the future.

As a reminder, in addition to making flexible working requests a ‘Day One’ right, the Government consultation proposes:

  • Requiring employers to suggest alternatives if they reject the employee’s request
  • Allowing the change to be temporary rather than permanent
  • Reviewing whether the eight business reasons for refusing a request remain valid.

Neonatal Leave and Pay (Expected in 2023)

There is a commitment to introduce extra-statutory leave and pay for all parents of premature babies needing specialist care in a neonatal unit. In March 2020, the government confirmed its intention to introduce 12 weeks’ paid leave for parents in this position to avoid them having to choose between returning to work and taking care of their new-born baby. It has been indicated that the premature baby leave would be in addition to existing maternity and paternity pay provisions. Although details on how it will work are yet to be released, the leave is expected to be taken after maternity/paternity leave, in blocks of one or more weeks, and paid at the statutory rate for those employees with 26 weeks’ service.

There was also a Budget 2020 commitment to consult on a new ‘in-work entitlement’ for employees with unpaid caring responsibilities, such as for a family member or a dependant.

  • COVID-19 – a reminder

Government Guidance

From 24th February this year, the Government replaced the legal requirement to self-isolate following a positive test with public health guidance to self-isolate. Along with special rules on statutory sick pay due to COVID-19 ending on 24th March, the end of free testing (from 1st April), contact tracing and self-isolation payments, this, of course, has brought up a lot of questions from employers.

What businesses can do

If you haven’t already done so, it would be prudent for businesses to plan and define their own approach to managing COVID-19 related cases and absences in their workforce. This can be done by way of putting a policy together and consulting with staff.

We would advise against having different rules and/or incentives for vaccinated and unvaccinated staff members, as this could potentially be discriminatory if not implemented correctly. There’s a delicate balance for any employer between the rights of an unvaccinated employee and the rights of other staff not to be subjected to an increased risk of infection. This along with rules and regulations now being dropped in different sectors requiring mandatory vaccinations, it would make sense to have one policy for all employees, vaccinated and unvaccinated alike. Unfortunately, it is not likely that we will get any guidance on this from the tribunal system for a couple of years so employers are largely operating in the dark, therefore it’s important to take professional advice before making any new policies. The current public health guidance for anyone that tests positive is to stay home for at least five days and avoid contact with others, and they should continue to do so until they have two negative test results on consecutive days or, 10 days have passed since symptoms first began/since the individual received a positive test result.

As an employer, you have a duty of care to protect your employees in the workplace and with the legal restrictions on self-isolation removed, this very much places the onus on employers to set and communicate expectations. Please do get in touch if you would like help and advice on developing your own COVID-19 procedures.

How SSP (Statutory Sick Pay) has changed since 24th March for COVID-19

It would make sense that employers do what they can to enable employees to stay home if they are COVID-positive. For example, if well enough to work, employers can allow employees to work from home for the recommended isolation period, if possible. As from 24th March statutory sick pay has reverted to pre-covid rules, in which employees will only be paid after they have been off for 3 days.

For those that test positive after the 24th March and, the nature of their work cannot allow for them to take up temporary home-working arrangements, it may make sense for employers to consider introducing their own company sick pay scheme for such instances, for the purposes of minimising the spread of the virus to others and to uphold their duties on maintaining a healthy and safe working environment for staff. It may be difficult to prevent individuals from attending work without their agreement to self-isolate without pay; hence why it would be worth exploring the option of introducing company-paid sick leave during the recommended isolation period.

Screening and testing

It may be that your organisation will still have in place workplace screening and testing. It is a reminder that you cannot force employees to take up any extra cost for screening or tests as from the 1st April. So, it is your job as the employer to cover any costs related to this. However, luckily to minimise the financial and reporting burdens, a new Income Tax exemption will be introduced to make sure that relevant tests provided by the employer are exempt from Income Tax.

Looking after clinically vulnerable staff members

Understandably, these individuals will continue to feel increasingly anxious with restrictions lifting, and employers may find they are dealing with staff that do not want to come into the workplace, particularly if appropriate measures to reasonably mitigate the spread of COVID-19 are not taken.

The Health and Safety at Work Regulations (1999) requires that ‘so far as is practicable, any persons at work who are exposed to serious and imminent danger to be informed of the nature of the hazard and of the steps taken or to be taken to protect them from it’. This means that, should an employee have a genuine reason to believe that they are in serious and imminent danger whilst at work or conducting their work duties, they can justifiably not attend or conduct work. This further adds to the importance of businesses continuing to maintain health and safety standards to help prevent catching and spreading the virus in the workplace, risk assessing and thoroughly communicating with staff on its measures and protocols.

Finally…

As a valued client, we would like to continue to keep you updated on key topics which we feel would be of interest to you and your business, for example employment-related developments and hot topics, details of our online training programmes and our quarterly Employment Law updates.

Should you wish to opt-out of these, please just let us know.

We would like to take this opportunity to thank you for your continued support and, should you wish to explore any of the topics highlighted in this bulletin, we would be happy to discuss them further with you. Please drop us a line at enquiries@sylobeyondhr.com.