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Employment Update - January 2022

Overview

Key employment and business immigration developments for employers.

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In the news

COVID-19 restrictions and homeworking

The Current Government guidance continues to be work from home where you can and only go to work where you must. This is part of the Government's Plan B measures which were introduced in December 2021 and which are set to be reviewed on 26 January 2022.

There has been no indication of when the guidance on homeworking might change but Education Secretary Nadhim Zahawi has said he is "confident" England will be in a "much better place" to lift some of the Plan B restrictions when they are reviewed on 26 January.

Despite this, employers have had to grapple in recent weeks with the question of when office attendance is necessary and when working from home is possible. Government guidance gives the examples of where access to equipment is necessary for an employee's role or where the role must be completed in person. The guidance also suggests employers should consider whether homeworking is appropriate for workers "facing mental or physical health difficulties, or those with a particularly challenging home working environment". Some employers are taking the view that employees may come into the workplace occasionally if this is necessary to support their mental wellbeing. Others are taking the view that certain tasks which involve collaboration can only be done effectively in person.

Whatever the approach, employers should be clear with staff what the policy is on homeworking versus office attendance. Employers who allow employees to attend the workplace should keep a written rationale of any decision in case this is later challenged. Employers should also ensure they follow Government COVID-safety guidelines to prevent the spread of COVID-19 in these circumstances. Particular regard should also be had for the welfare of those continuing to work from home and the risks of isolation, and employers should seek to devise fresh strategies for regular check-ins and social interaction. Financial services businesses should also bear in mind guidance issued by the FCA on remote and hybrid working.

Employers may also wish to begin considering plans for a safe return to the workplace and communications around this should the homeworking guidance change in the coming weeks.

Immigration radar

Post-Brexit immigration one year on 

New post-Brexit visa requirements now apply to all non-British and non-Irish nationals arriving in the UK since 1 January 2021, with employer-sponsored Skilled Worker visas being the leading work visa route. Introduced just over a year ago, the Skilled Worker route now accounts for 61% of work visas issued. The Home Office recently launched the skilled worker eligibility checker, an interactive tool to help applicants and employers check whether a role qualifies for a Skilled Worker visa. The checker provides a useful, rough and ready guide, but it remains important to take advice on the nuances of the Skilled Worker visa route.

Youth mobility visa widened

On 1 January 2021, the temporary "Youth Mobility Scheme" opened up to nationals from India and Iceland. This temporary visa route allows young people aged between 18 and 30 to come to the UK to work for up to two years without needing employer sponsorship. However, this route is only available to nationals of a small list of countries, with India and Iceland now being added to the list. Additional requirements apply to applicants from India who must meet minimum qualifications or experience requirements to qualify.

Right to work update

Employers must check all employees have the right to work in the UK before they start work. For employees on visas, the check must be repeated at the expiry of the visa. Currently, right to work checks for EU nationals must be conducted online but checks for non-EU national visa holders can be conducted physically or online. From 6 April 2022, mandatory online checks will be required for EU and non-EU national visa holders, including those with a biometric residence permit (BRP), biometric residence card (BRC) or frontier work permit (FWP). These changes do not immediately affect checks for British and Irish nationals, which can only be done manually (although the Home Office also intends to bring in a process to enable employers to complete online checks for British and Irish nationals using digital technology from 6 April 2022). Employers can continue with their current checking process for the time being but, from 6 April 2022, will need to update their checking procedures to reflect this change. The current COVID-19 concession for remote manual checks will also end on 5 April 2022 and employers will also need to update their processes from 6 April 2022 to reflect this. 

New visa routes

The Government has announced that a new "Scale-up" points-based visa route will be introduced from spring 2022 to attract highly skilled talent. While full details are yet to be announced, this route is intended to provide a fast-track visa route for highly skilled individuals with a job offer from a high-growth business. There is no detail yet on how a business will qualify as "high-growth" or how an individual will qualify as "highly skilled" but a minimum salary of £33,000 or the "going rate" for the role (if higher) is expected to apply as well as an English language requirement.

The Government also plans to bring in a new "Global Business Mobility" visa by spring 2022 to provide a new, more flexible route for overseas businesses to establish a UK presence or transfer staff to the UK temporarily. The new route would allow employers to send individuals to set up a business or branch in the UK for the first time without any existing UK presence. This route will sit under the existing sponsorship system so will differ from the current "Representative of an Overseas Business" visa which is a non-employer sponsored route. Employment Update will report developments.     

Case watch

Flexible working - how long do you have?

A recent case has considered how the deadline for responding to a flexible working request works where the employee appeals the outcome. The employee in this case made a flexible working request which was rejected about a month later. The employee appealed. There were then extensive discussions about setting a date for the appeal hearing, meaning it was delayed through no fault of either party. The hearing was eventually conducted over three months after the employee's original request. The employee attended the appeal hearing and the appeal was rejected.

The employee brought a claim arguing that the employer had failed to comply with the statutory procedure for considering flexible working requests, which requires the employer to give its decision on the request (including any appeal) within three months of the request. The employer argued that the employee had implicitly agreed to extend the response deadline by attending the appeal hearing outside of the three-month deadline. An Employment Tribunal initially ruled that the deadline had been extended by agreement. However, on appeal, the Employment Appeal Tribunal ruled that the employee had not necessarily agreed to extend the deadline for responding by simply attending an appeal hearing after the deadline had passed. Accordingly, the employer had failed to comply with the statutory procedure.

WALSH V NETWORK RAIL INFASTRUCTURE LTD

Employers have three months to respond to a flexible working request made under the statutory regime for flexible working. However, this case is a reminder that the employer must not only respond to the original request but must also hold and respond to any appeal within this three-month deadline. The parties can agree to extend the deadline but, as this case shows, any agreement must be express and ideally obtained in writing. The employer cannot simply assume that an employee has agreed to an extension if the employee says nothing or simply attends an appeal hearing outside the deadline. 

Where an employer fails to respond within the deadline, or fails to comply with any other procedural requirement, the employee can seek compensation of up to eight weeks' pay, currently capped at £544 per week (£4,352 in total). More importantly, where an employer fails to consider a flexible working request properly and cannot justify rejecting the request, it could face discrimination claims, e.g. where the request relates to an employee who is a carer or has a disability. Compensation for discrimination claims is uncapped. 

The Government is currently considering whether to reduce the three-month deadline to a shorter period as part of its consultation on making flexible working the default, which closed on 1 December 2021. Employment Update will report developments. 

Menopause - is it a disability?

An employee will be considered to be legally disabled if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. A recent case has considered whether an employee suffering from menopausal symptoms could meet this definition. 

The employee claimed that she was disabled as she suffered from a number of menopausal symptoms for two years which had a negative impact on her life and meant she struggled to cope. These included insomnia, confusion, stress, depression, anxiety, memory loss, migraines, and hot flushes. She brought claims for constructive dismissal, sex discrimination and disability discrimination, alleging that her employer discriminated against her and treated her unfairly due to her symptoms. She claimed that the employer had given her a written warning for sickness absence related to her menopausal symptoms, failed to provide a female doctor for an occupational health assessment and had asked her to explain her symptoms in front of male managers and colleagues, which made her uncomfortable.

An Employment Tribunal initially ruled that the menopausal symptoms did not amount to a disability because the employee was able to carry out some day-to-day activities, including being a carer for her husband and mother. However, on appeal, the Employment Appeal Tribunal (EAT) disagreed. The EAT said it was wrong to focus on what the employee could do and weigh this against what she could not do. There was ample evidence that the employee's symptoms had a substantial adverse impact on her ability to carry out day-to-day activities, so the EAT sent the case back to a different Employment Tribunal to be reconsidered.

ROONEY V LEICESTER CITY COUNCIL

This case is a reminder that menopausal symptoms can amount to a disability. Accordingly, employers may, in some circumstances, have a duty to make reasonable adjustments for employees in order to relieve any disadvantage as a result of such symptoms. Employers should also be wary of any less favourable or insensitive treatment of employees suffering menopausal symptoms as this could result in claims for discrimination or harassment on the basis of disability, sex and/or age. Employers should also consider carefully any requests for flexible working in these circumstances.

The impact of the menopause on the workplace has come under the spotlight recently. In July 2021, the House of Commons Women and Equalities Committee launched an inquiry into menopause and the workplace, and whether greater protections are needed, such as a requirement that employers put in place a menopause policy. The inquiry closed on 17 September 2021 and a report is anticipated early in 2022. In the meantime, some employers have already put in place a menopause policy or are considering doing so. Please speak to your usual Employment department contact if you would like more information.  

New law

Statutory sick pay

The Department for Work and Pensions (DWP) has published its proposed increase to the rate of statutory sick pay, which is to apply from April 2022. The proposal is that statutory sick pay would increase from £96.35 to £99.35 per week. The increase needs to be confirmed by an Order which is yet to be made but, once confirmed, would apply from 11 April 2022. 

From 10 December 2021 until 26 January 2022, employers can only ask for proof of sickness once an employee has been off for 28 days. Previously employees could self-certify sickness absence for up to seven days and had to provide proof after that but this period was increased to 28 days on 17 December 2021. The change is to reduce pressure on GPs as they contribute to the vaccination booster programme. However, these rules will only be in place up to and including 26 January 2022 (unless extended) and are limited to periods of sickness that began on or after 10 December 2021.

Statutory pay for family leave

The DWP has also proposed the increased rate for the lower rate of statutory maternity pay and the rate of statutory paternity, adoption and shared parental pay. It is proposed that the rate would increase from £151.97 to £156.66 per week from April 2022. The increase must also be confirmed by an Order which is yet to be made but, once confirmed, would apply from 11 April 2022.

Consultation

Umbrella companies

The Government has launched a call for evidence on the role of "umbrella companies" in the labour market. An umbrella company is a business which employs individuals and supplies them to third party clients for temporary work, usually via an agency or employment business. The umbrella company pays the individual's salary, operates PAYE and manages their employment rights but work is usually sourced by the agency or employment business and the individual typically works for and under the supervision of the third-party client. While the government understands the useful role that umbrella companies can play in supporting a more flexible labour market, it is concerned that some operators are abusing the system through poor employment practices and lack of tax compliance. In its call for evidence, the Government asks clients and employment businesses about their use of and experience with umbrella companies and will use the responses to make future policy decisions about how to tackle poor practice in this area. The consultation closes on 22 February 2022.

Our work

Since the last Employment Update, our work has included:

  • starting High Court proceedings relating to a team move

  • conducting a global benefit and contractual term comparison for a client in new entities acquired through a share acquisition

  • advising on a flexible working request following return from maternity leave

  • advising on an investigation into #MeToo allegations

  • supporting with the integration of an acquired business

  • advising on steps to take following the theft of confidential information by an employee

  • advising on compulsory office attendance in light of the government's updated COVID-19 guidance.
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