How the pandemic affected Gender Pay Gap Reporting
Measurement is vital to understanding how much of a problem the Gender Pay Gap is. The World Economic Forum (WEF) Global Gender Gap 2021 report found that the impact of the pandemic has pushed back the gap’s likely date of extinction from just under 100 years to 136 years’ time.
The pandemic and the many business decisions it created fell on women disproportionately. Working mothers were more likely to have their working hours reduced, be furloughed, or lose their jobs than their male colleagues.
The UK Government introduced regulations to improve the level of scrutiny of the gender pay gap. All businesses with 250 or more employees had to publish their gender pay gap. This began in 2018 and there quickly emerged a consistent pattern of gender pay inequality amongst millions of employees, within organisations and across many sectors. Not only did the pandemic damage the job and pay prospects for women but also the progress made in this form of reporting.
Just two weeks before the April 2020 deadline for private sector businesses to publish their April 2019 gender pay gap statistics, the Government announced that due to the pandemic there would be no mandatory requirement to report gender pay gap data in that year.
Despite the negative impacts of the pandemic on an employer's gender pay reporting, businesses should see this as an opportunity to work on effective strategies to reduce the gender pay gap.
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April 2022 Employment Law Changes
There are several changes in employment law taking place in April. Read our blog for a summary of the key changes.
Minimum Wage
From 1 April 2022, the national minimum wage increased. The new rates are:
- National living wage (23+): £9.50 per hour
- Adult rate (21-22): £9.18 per hour
- Development rate (18-20): £6.83 per hour
- Youth rate (16-17): £4.81 per hour
- Apprentice rate (under 19 or in the first year): £4.81 per hour
- Accommodation offset: £8.70 per day
Employers will need to ensure they are paying in line with these new rates from April 1st going forward.
Statutory Payments
Statutory payments also rose in April. Statutory sick pay increased to £99.35 per week from April 6th, 2022, and statutory maternity, paternity, adoption, shared parental, and parental bereavement pay all went up to £156.66 per week with effect from the 3rd of April 2022.
Covid-19
From the 1st of April 2022, new public health guidance was provided. Anyone with a positive Covid-19 test result is advised to try to stay at home and avoid contact with other people for five days after the day they took the test. Anyone with symptoms is advised to try to stay at home and avoid contact with others until they stop displaying symptoms.
Free tests were withdrawn from April 1st and instead, lateral flow tests can be bought from retailers for around £2 per test.
Most employers will no longer have to consider COVID-19 in their risk assessments from April 1st.
PPE to be provided to workers
From the 6th of April 2022, the Personal Protective Equipment at Work (Amendment) Regulations 2022 came into force and amended the 1992 Regulations. Under the new rules, employers will be required to provide suitable free personal protective equipment to workers as well as employees where there is a health and safety risk. If PPE is required, employers must ensure their workers have sufficient information, instruction, and training on the use of PPE.
April looks like to be a busy month with plenty of changes and things to be aware of for employers.
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Mandatory COVID-19 Vaccinations are not required for Care Home Workers
Mandatory vaccinations became a requirement to work in a care home from 11th November 2021. This was due to be extended to all patient-facing staff in the health and social care sector on 1 April 2022.
On 31st January 2022, the Government announced that a public consultation would be launched on whether to revoke mandatory vaccinations. The consultation response was published on 1 March 2022. As a result of the consultation, regulations came into force on 15 March 2022 revoking the requirement for vaccination as a condition of deployment in health and social care settings.
Care home staff will no longer be required to be vaccinated against COVID-19 to enter care homes. While this is good news for the health and social care sector, there is still a possibility that mandatory vaccinations may be re-introduced in the future.
What to do next?
Care homes and those who were due to be affected in the health and social care sector from 1 April 2022 will now need to:
1. Review and update policies.
It is important for all employers to be aware that they have a duty to protect the health and safety of employees. As a result, employers are urged to carry out risk assessments and it is still likely that those providing health and social care will have a policy that recommends vaccination.
2. Update contracts that had been changed to refer to mandatory vaccination
3. Consider any cases of employees who are on notice or have been dismissed due to not being vaccinated. Employers should review these decisions against the change in regulation and their updated policies.
4. Keep health and safety risk assessments under review.
5. Discuss with their employees that there is no longer a requirement for their continued employment.
The Closure of the Statutory Sick Pay Rebate Scheme
On the 17th of March 2022, the Statutory Sick Pay Rebate scheme will close. You have until the 24th of March 2022 to submit any new claims for absence periods up until the 17th of March, or you can amend claims you have already submitted.
You will also no longer be able to claim back Statutory Sick Pay for your employees’ Covid-19 related absences or self-isolation that occur after March 17th.
From the 25th of March, the normal Statutory Sick Pay rules will return. This means you can revert to paying Statutory Sick Pay from the fourth qualifying day your employee is off work regardless of the reason for their sickness absence.
For more information on how to make your final claims click here.
Living with Covid-19: The Latest News for Employers
The UK Prime Minister recently announced the living with Covid-19 strategy for England. All Covid legal restrictions will end in England on Thursday 24th of February and free testing will stop from Friday the 1st of April.
Here’s what employers need to know:
Self-isolation
Currently, if you test positive for Covid-19 you are legally required to self-isolate for ten days or five days following a negative lateral flow test on days five and six. From the 24th of February, this will be removed. A minimum five-day self-isolation period will still be advised, but workers are not obliged to tell their employers if they have tested positive and need to self-isolate. This change may cause some issues for employers.
Although the Government’s rules have changed, employers still have a duty of care to take reasonable steps to prevent foreseeable harm from occurring to their employees. Additionally, the relaxation of the rules will cause concern for employees who are fearful of contracting Covid-19. This may result in a reluctance to return to the workplace. Employers should continue to comply with the Government’s ‘Working safely during Covid-19’ guidance, which will remain in force until the 1st of April 2022.
Employers may advise employees to self-isolate for a minimum of five days following a positive Covid-19 test and may consider going further than Government guidance in the workplace. If they do, they will have to consider their position in relation to sick pay if the employee cannot work from home.
From the 24th of February, vaccinated contacts of a positive Covid-19 case will no longer be required to test for seven days and unvaccinated contacts will no longer have to self-isolate. Furthermore, from this date self-isolation support payment will also end. The support payments for self-isolation will also end on this date.
From the 24th of March, there will be changes to statutory sick pay and the employment support allowance will come to an end.
Testing
The Prime Minister also announced that the free universal symptomatic and asymptomatic lateral flow and PCR testing will be removed from April 1st. The UK Health Security Agency will decide who is entitled to free tests, but this will be limited to symptomatic at-risk groups and social care staff. Anyone else who does not fall into these categories will have to pay.
Numerous employers are relying on regular employee testing to keep their workplace Covid free. Once testing is no longer available for free, employers will have to determine a new approach. They may have to consider purchasing test kits for their employees.
Vaccination
The Government announced additional booster jabs for those ages 75 and over. Mandatory vaccination polices have been risky, they can lead to legal risks including, data privacy, unfair dismissal, and discrimination. The Government intend to revoke plans to make vaccination mandatory for all health and social care settings in England, however, it has not been officially confirmed when or if this will happen.
Hybrid Working
Aside from health and safety concerns, some employees may be reluctant to return to the workplace due to a change in lifestyle. Employers will need to consider whether their employment contracts contain a requirement to work at the workplace, and if so, whether it is reasonable to enforce such requirements. Many employees will have the right to request flexible working, to which the Government is working on considered responses to these requests. Employers should treat these requests very carefully. If an employee has successfully performed their role at home during multiple lockdowns, then it would be extremely difficult to refuse a flexible working request.
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Tribunal Case: Refusal to get Vaccinated
In the Allette v Scarsdale Grange Nursing Home Ltd, an employment tribunal held that a care home worker was fairly dismissed when she refused to get the vaccination against Covid-19.
Background
Ms Allette worked in a nursing home that provides residential care for people with dementia. In December 2020, staff were encouraged to have their Covid-19 vaccinations to protect their staff and residents. By the middle of January 2021, the nursing home changed their approach and required that staff had to be vaccinated to continue their employment. There had been a Covid-19 outbreak in the nursing home which resulted in the deaths of multiple residents. There was nothing in Ms Allette’s contract of employment that required her to be vaccinated nor was there anything in the nursing homes disciplinary procedure about the termination of employment due to the refusal to get the vaccine.
By the middle of January 2021, it was now made mandatory for staff in the nursing home to be vaccinated, and there was a risk of disciplinary action if she refused to get vaccinated. Ms Allette did not want to be vaccinated as she was concerned over the safety of the vaccine. She was dismissed from the workplace for gross misconduct at the start of February 2021. Her Rastafarian beliefs include being opposed to any form of non-natural medication was reason for her refusal. Her appeal against the dismissal was unsuccessful.
Tribunal Claim
Ms Allette brought claims to the employment tribunal (ET) that her dismissal was unfair due to the right to respect her private life under the European Convention on Human Rights. She also argued that the dismissal was wrongful as it was in breach of the contract.
Employment Tribunal Decision
In relation to Ms Allette’s unfair dismissal claim the ET acknowledged that the employer could have:
• Given her more opportunities to change her mind
• Placed her on unpaid or paid leave
• Sought further scientific information or material to persuade her that the vaccine was safe and necessary.
The tribunal refused to conclude that no employer would have responded the same as the care home did in the circumstances of this case.
They accepted that the nursing home cannot be in direct breach of Act.8 (on the right to respect for private life) of the European Convention on Human Rights because it is not a public authority. The tribunal went on to conclude that the employer's interference in Ms Allette's private life was justified in this case. The tribunal had to consider the balance between her right to a private life and this small employer's legal and moral obligation to protect its vulnerable residents.
When rejecting Ms Allette’s wrongful dismissal claim the ET accepted that the rights of the residents, staff members and visitors outweighed the impact that the requirement to be vaccinated had on Ms Allette.
In relation to her wrongful dismissal claim the ET accepted that there was nothing in her contract that required her to have the vaccine. However, the ET accepted that the nursing homes instructions to their employees that you had to be vaccinated to remain employed was within reason due to the:
• state of the COVID-19 pandemic nationally at that time
• consequences of the care home's outbreak
• advice on the virus and vaccination from public health authorities in England.
The ET found that there was mistrust between Ms Allette and the nursing home’s management team on what she was being told about the safety of the vaccine. According to the tribunal her decision was not made by any religious beliefs and the reason for her not to get vaccinated was unreasonable.
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Covid-19: The Most Recent Tribunal Cases
There is no doubt that there is a rise in tribunal cases, recent cases include the refusal of returning to the office in fear of catching the virus. It is important as an employer to understand what employees are entitled to and understanding that there is still a fear surrounding Covid-19
Two of the most recent tribunal cases, Moore v Ecoscape UK Ltd and Lewis v The Benriach Distillery Company Limited discuss the claims and outline the decision that the employment tribunal (ET) came to.
Moore v Ecoscape UK Ltd
Ecoscape required Moore to return to working from the office. Moore sought to rely on section one hundred of the Employment Rights Act 1996, to which a dismissal is automatically unfair where an employee believes that they are in ‘serious and imminent danger’ if they leave or refuse to attend the workplace while the danger persists.
Ecoscape conducted various Covid risk assessments and adjusted the office and sanitisation procedures. They also provided Moore with a separate working space with her own equipment to address the concerns that she had. She was still reluctant to return and asked if she could work from home. Based on the nature of her work, the employer refused this request as she deals with deliveries and customers. She raised a grievance and a grievance appeal, but both were unsuccessful. She resigned and brought a claim for constructive unfair dismissal.
The ET found that the claimant’s Covid concerns related to a general fear about leaving the home and not about the employer’s workplace. She failed to involve herself with the discussions with Ecoscape about the measures they implemented and refused to visit the workplace to review those measures.
The ET concluded that Ecoscape had taken appropriate steps to accommodate the concerns of the claimant and that they failed to explore any compromises proposed by Ecoscape. In a result the claimant’s claim failed.
Lewis v The Benriach Distillery Company Limited
Mr Lewis was a forklift driver for a whisky distillery. He served 23 years of good service and was dismissed without notice for attending work when his son informed him of having symptoms of Covid-19 and had booked a Covid test. Lewis did not believe his son’s symptoms (a cough and loss of smell) were genuine. He thought his son was faking his symptoms so he could get off work.
At the time the Scottish government’s guidance required anyone who lived with someone displaying symptoms to isolate. His sons test came back positive the next day and Lewis was dismissed for gross misconduct.
An ET found that Lewis’ dismissal was unfair. There was nothing in the government’s guidance that would require someone to self-isolate if Lewis genuinely believed that his son was not in fact displaying Covid symptoms.
While assessing the case, the employer should have taken into consideration:
his 23 years of good service
his record of compliance with Covid guidance; and
that there was no advantage to him in attending work or disadvantage in not attending work – he would be paid in either case.
The ET found that there was some contributory fault from Lewis so reduced his financial awards by 25%.
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Remote Working: What are the risks? How to Manage them.
It is evident that remote working, whether it be fully remote or part of a hybrid working model, is a preferred choice for many employees. For employers, remote working comes with multiple risks that must be managed carefully.
What are these risks?
Employee Isolation- When working from home, it is easy to sit at the desk for the entire day and not take a break. This can lead to potential burnout. In the office it is easy to take a five-minute break for a cup of tea or just a stretch. Furthermore, employees may feel that they are less capable of having access to the appropriate support from colleagues or management. It is important the employees are aware that the same support is available to them whether they are working in the office or at home.
Data protection breaches- There is no doubt that protecting employees, contacts and customers personal data and confidentiality when they are all working from a central location is a lot easier to manage. Employees who work remotely and live in shared accommodation or use public Wi-Fi networks for work can risk data being seen and obtained by third parties.
Overlooking health and safety responsibilities- It is important that employers do not forget that they are obliged to protect the health and safety of their employees at work, whether they work remotely or at the office.
How to Manage the Risks
Promote collaboration - Try have regular Zoom/Team meetings to stay connected with colleagues. Here, employees can share their ideas with one another and an easy way to stay in contact with each other.
Raise awareness of employees’ data protection obligations - Employers should amend their data protection policy to suit the different employee circumstances. E.g., how to deal with storing documents safely, how they should be destroyed, and who has access to them. Furthermore, employers should provide training sessions on data compliance to ensure that they are made aware of their responsibilities whether they are working from home or the office.
Carry out health and safety assessments- Employers should update their health and safety policies so that they risk assess every employee’s remote working place. They should consider how safe the employee’s work set up is and how they can help them.
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Employer Update: Statutory Sick Pay Rebate Scheme
Following on from our previous blog post where we discussed 'The Omicron Variant & The Workplace', it is evident that many employers and employees are still being hugely affected by COVID-19 and as such the topic of the Sick Pay Rebate Scheme has re-appeared. It has been announced that the Sick Pay Rebate Scheme will be reintroduced across the UK with effect from the 14th of January 2022.
The Scheme allows employers with fewer than 250 employees to recover up to two weeks' Statutory Sick Pay for each employee who is unable to work due to Covid-19 in relation to days of absence after the 20th of December 2021 (even if the period of absence began on or prior to this date). The Scheme also extends to employees who are absent due to a requirement to self-isolate. Employers must submit any relevant claims by no later than 24 March 2022. Employers can make more than one claim per employee, but they cannot claim for more than 2 weeks in total.
The online service employers will use to claim back Statutory Sick Pay (SSP) is now available.
Employers are reminded that they must keep the following records for 3 years after the date they receive payment for their claim:
- the dates the employee was off sick
- which of those dates were qualifying days
- the reason they said they were off work – if they had symptoms, someone they lived with had symptoms or they were shielding
- the employee’s National Insurance number
Employers can choose how they keep records of their employees’ sickness absence but it is important these records are kept as the HMRC may need to see these records if a dispute was to arise in relation to over payment of SSP.
Employers will also need to print or save their state aid declaration (from their claim summary) and keep this until the 31st of December 2024.
Other Important Points for Employers to Note:
- It remains a criminal offence for an employer to knowingly allow a worker to attend the workplace when they are required to be self-isolating and as such it is critical that employers understand these new rules and review their policies and procedures accordingly.
- Employers are still under a duty of care to provide a safe system of work for their employees and this includes employees who are clinically vulnerable to Covid-19.
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The Omicron Variant & The Workplace
Given the recent number of omicron cases in the United Kingdom, the Government has imposed new measures to help combat this new variant but what does this mean for the employer and the workplace?
- Employers should continue to review and, if necessary, update their COVID-19 risk assessment in light of the new variant. For example, consider whether in-person meetings should be reduced or even scrapped for the time being to limit the risk of spread and to protect the most vulnerable members of staff.
- They should continue to encourage their staff to get vaccinated and extend this encouragement to boosters also.
- Any existing vaccination policy should be updated to take into account vaccine boosters.
- Consider making the wearing of face masks compulsory in communal areas if this is not already the case.
- Employers should consider relaxing any requirements for staff to attend the workplace. This would be conducted as part of updating the workplace risk assessment. Although the Government is not explicitly advising people to work from home, they are placing the burden on employers to consider whether this is the appropriate approach.
- Employers should consider putting contingency plans in place to deal with the possibility of increased absences as a result of staff being required to self-isolate, either because they have tested positive for coronavirus or they have been instructed to isolate because they have been identified as a close contact of someone who has tested positive to the Omicron variant. They must also consider
how any unexpected absences will be dealt with as a result of staff having to self-isolate upon return from any holiday abroad during the festive period. This should be communicated to staff as soon as possible to avoid/manage any possible complaints.
And lastly the big question for employers is can Christmas parties go ahead?
Although the Prime Minister, Boris Johnson, has said that the Government does not want Christmas parties to be cancelled because of the Omicron variant, there have been reports of pubs, restaurants and hotels across the UK receiving cancellations of bookings for Christmas parties and events amid fears about the variant.
It is important to realise that staff may be nervous about attending such events and therefore it is advisable for employers to communicate with heir employees as to how they feel about such an event and react accordingly. If Christmas parties are to go ahead, employers should consider additional safety measures, such as sight of a negative lateral flow test result before entry.
The key message to employers is to watch developments closely, follow government guidance and to be ready to react quickly in order to adapt to any further measures introduced by the Government in response to the Omicron variant.
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