Our monthly employment law update brings you the latest top picks of employment law developments that may affect your business.

Remember though, we’re always here to answer any questions you have and to help you navigate the wondrous world of employment law in managing your people!

This month we will cover:

1. Statutory Sick Pay changes

2. Entitlement to the additional Platinum Jubilee bank holiday

3. Right to Work Checks extension

4. National minimum wage changes

5. Recent case law with takeaways for your business:

Dismissal for vexatious grievances;

Holiday payfor workers

1. Statutory Sick Pay - Covid Related Update

From 24th March you’ll no longer be able to claim back Statutory Sick Pay for your employees’ coronavirus-relatedabsences or self- isolation that occur after 17 March 2022.

You’ll have until 24 March 2022 to submit any new claims for absence periods up to 17 March 2022, or to amend claims you’ve already submitted.

After then, there’s a return to the normal SSP rules, which means you should go back to paying SSPfrom the fourth qualifying day your employee is off work, regardless of the reason for their sickness absence.

2. Bank Holiday Entitlement During Platinum Jubilee

This year there’ll be an extra bank holiday to celebrate the Queen’s platinum jubilee on 3rd June 2022. In addition, the late May bank holiday has been moved to Thursday 2nd June, meaning two back-to-back bank holidays in June 2022. So, take a look at how you manage this early.

First, what do your contracts of employment say?

Where the contract entitles employees to holidays plus bank holidays you’ll need to grant the extra day as leave. Or if your contracts state a specific number of days holiday inclusive of bank holidays, there's no need to give this extra day as leave.

Even if you’re not contractually obliged to grant the extra day as leave, have a think about whether you’ll choose to do so anyway as a goodwill gesture to employees (for example in reward of their hard work during the pandemic) and communicate this.

3. Right to work checks

The law states that every person being employed within a business, must have a ‘right to work check’ to check their eligibility to work in the UK regardless of nationality.

These checks should be done in person but during the pandemic, the Home Office changed the rules to allow right to work checks to be carried out over video calls, with scanned documents or a photo of documents as evidence, rather than sending the originals. These changes were due to end on 5 April 2022 but have now been extended to 30 September 2022.

Meanwhile, the adjusted process has been very well-received, but the downside is an increased risk of individuals being able to use fraudulent documents to secure employment, so the Home Office has now created a new digital right to work checking solution.

From 6 April 2022, employers will be allowed to use certified providers to undertake digital identity checks. This will be available for use in relation to British and Irish citizens who hold valid passports (or Irish passport cards) as they’re currently outside the scope of the Home Office's existing online service (which is largely limited to EEA nationals with settled status). The new online system will also be able to be used for pre-employment DBS checks.

4. National Minimum Wage Changes 1st April

As we get closer to April, here’s a quick reminder of the new national minimum wage rates. Do check your lower paid staff and apprentices to make sure you’re paying in line with the new rates. The hourly rates of the minimum wage will increase from:

•£8.91 to £9.50 for workers aged 23 and over (the national living wage)
•£8.36 to £9.18 for workers aged 21 or 22
• £6.56 to £6.83 for workers aged 18 to 20
• £4.62 to £4.81 for workers aged under 18 who are no longer of compulsory school age, and
• £4.30 to £4.81 for apprentices under 19, or over 19 and in the first year of the apprenticeship.

5. Case Law with Potential Implications for your Business

5.a. Fair dismissal for raising numerous frivolous grievances.

In Mr Hope v British Medical Association (BMA), Mr Hope a senior policy adviser at the BMA submitted numerous grievances against senior managers, for example about not being invited to meetings by them.

Mr Hope insisted that his grievances were heard only by his line manager, despite his line manager not having the authority to resolve grievances about senior management.

Mr Hope then refused to formally progress or withdraw any of his grievances, wanting instead to raise them further at a later date if he chose to.

Mr Hope was warned that he could face disciplinary action if his grievances were found to be silly or vexatious and that he must decide to a deadline whether to progress the grievances to the formal stage of the grievance procedure or withdraw them. Mr Hope then raised another grievance about the imposition of this deadline.

After following the appropriate grievance procedure (which Mr Hope refused to attend), BMA then put Mr Hope into a disciplinary process, and subsequently dismissed him for misconduct.

Mr Hope claimed he had been unfairly dismissed but the EAT disagreed stating that Mr Hope had been fairly dismissed for bringing numerous 'vexatious and frivolous' grievances, refusing to progress them or withdraw them abusing the grievance process, and failing to comply with a reasonable management instruction to attend the grievance meeting.

Takeaways

This case is interesting because it highlights that it's possible in some cases to fairly dismiss an employee forbringing repeated, frivolous and vexatious grievances. This will come as a relief to managers who find themselves in an endless cycle of grievances about minor grievances.

However, always exercise caution as follows:

• Each case will be fact specific so the above won't apply in all cases.

• Employers should continue to always carefully consider the merits of each grievance an employee raises and follow the appropriate procedure

• Effective handling of a grievance will involve looking for a solution addressing an employee's concerns while at the same time balancing the needs of the organisation/the employee's colleagues and managing the employee's expectations about what can, and/or can't, be done to resolve the grievance.

5.b. Employer made to pay £74,000 in unpaid holiday to a self employed contractor (or so they thought!)

From prior case law we know that that a 'worker 'is entitled to be paid when employment ends for any periods of annual leave that have accrued during employment, if they’d been discouraged from taking that leave because it would have been unpaid. There was no limit on the amount of leave that could be carried over.

A person is generally classed as a 'worker' if:

• They have a contract or verbal arrangement to do work personally for some monetary reward or benefit in kind.

• They only have a limited right to send someone else to do the work if they can't (subcontract)

• They have to turn up for work even if they don't want to.

In the long-running case of Mr Smith v Pimlico Plumbers Ltd; having already succeeded in establishing he was a 'worker' not 'self employed', Mr Smith has now also succeeded in his holiday back pay claim with wide implications for businesses.

The Court of Appeal has confirmed that the right to carry over annual leave without limit covers not only a worker who doesn’t take leave because it would be unpaid, but also a worker who takes unpaid leave because the employer refuses to recognise their right to paid leave. In both scenarios the employer is stopping the worker from being paid for leave.

Takeaways – What does this mean for employers?

If a worker has been prevented from taking paid annual leave during their employment they can make a claim to be back-paid for unpaid leave.

They may have claims for four weeks' holiday pay per year going back to when they began work (whether or not they’ve actually taken any leave).

This decision has far-reaching consequences, particularly for employers where the right to paid annual leave has generally been denied due to the insistence that the person is self-employed rather than a worker.

Where these claims cover many years, the amounts involved can be significant; for example, the claimant in this case was claiming holiday pay for the entire period of his employment in the sum of around £74,000.

Takeaways - What this does not mean for employers

Workers who claim to have been underpaid (rather than unpaid) holiday pay, are unaffected. For example where the employer recognised the right to paid annual leave but made an underpayment due to miscalculating "normal pay" (for example, by not including overtime/commission). The taking of paid leave (even if underpaid) means the right to paid leave has been exercised and an underpaid worker would instead need to claim for unlawful deduction to wages to recover the difference with a limit of 2 years back-pay.

The principles from the case of Mr Smith v Pimlico Plumbers Ltd only applies to cases in which the employer has denied the right to "paid annual leave" altogether.

If you'd like to talk about any concerns you have relating to your current HR practices, you know where we are! Contact us on 0330 056 3664