We’ve seen a lot of controversy online over the past couple of days regarding law firm Stephenson Harwood’s announcement that they’re to cut pay by 20% for home workers. Here, our legal experts from Supportis HR wade into the discussion…
Stephenson Harwood announced that employees were welcome to work remotely 100% of the time, however, this would come at a cost of a 20% salary reduction. The policy was extended to all staff, including lawyers, below partner level.
This has been heavily criticised, and a rep from the company responded by highlighting that they also operate a Hybrid Working policy, in which employees can come into the office at least 3 days out of 5 for full pay.
It’s not gone unnoticed that none of those who have taken the firm up on the 100% remote option are trainee or junior lawyers. With the cost of living higher than ever, we find it difficult to understand how deducting from pay would be deemed a reasonable solution to any issues employers might find wfh causes. Especially as of course they will be saving on operating costs including office space whilst employees aren’t in the office.
Having a ‘one fits all’ policy such as the one Stephenson Harwood have implemented not only bypasses individual consultation (which we would always recommend when changing any terms and conditions of employment, especially for staff with over 2 years’ service!) but it’s also risky in terms of being potentially discriminative.
If working from home has been favoured by women with caring responsibilities, or by a disabled employee for practicality reasons, docking their pay is running the risk of leaving the company open to claims of indirect discrimination.
By virtue of the policy offering less pay to those who wfh, this also must infer that home workers aren’t as productive, hardworking or committed as those in the office. We have seen research to the contrary of this outdated view time and time again.
Furthering a point we’ve touched on above, those who wfh will inevitably face higher utility costs as they’ll be home all day as well as the evening. With soaring costs of living, it could certainly be argues that docking pay for home workers is ignorant to this issue and contributing to employee’s struggling to pay bills – a real and unfortunately more common problem than most employers would like to address.
We’re no stranger to reporting on the ‘great resignation’ of 2021. As millennials and gen Z especially simply aren’t willing to put up with remaining in professional situations where they don’t feel valued, employees wanting more flexibility will end up looking elsewhere.
In conclusion, employers thinking of cutting pay for those who wfh would need to be able to justify that cuts were a legitimate and proportionate measure, e.g. by proving that 20% of wages were saved by the employee by not coming into the office. We argue this wouldn’t be reasonable or practicable.
We’d be interested to hear your thoughts… Connect with us on socials @supportishr and join the discussion, where we report on all things HR, employment law and H&S every weekday!
Digital right to work checks are currently due to end on 30 September 2022. This date has been delayed further multiple times because of employer concerns around the return to in-person checks. Also, with the shift to remote working for a number of employers, in-person checks can be difficult to conduct.
The UK government recognises that digital checks are favoured and have therefore announced implementation of digital right to work checks for employees.
What’s new?
- From 6 April 2022, foreign nationals who have a biometric residence card, biometric residence permit or frontier worker permit can only be checked online, not manually. They must provide their DOB and share code to allow the employer to check their status using the Government’s online checking service. This is a free service and as a result, manual checks will no longer be permitted. Employers don’t need to carry out a retrospective check for employees where a manual check was completed on or before 5 April 2022.
- From 1 October 2022, employers will use certified Identity Service Providers (IDSPs) to complete digital right-to-work checks for British and Irish citizens with valid passports. This will be an alternative to manual checks, and the IDSPs will complete these digital right-to-work checks on behalf of employers for a fee. The digital check will involve submitting images of personal documents rather than the original documents using Identity Document Validation Technology instead.
- Manual checks can continue to be carried out for employees not covered by point 1 above. This will mainly cover British and Irish nationals who do not require permission to work in the UK.
Supportis have a wealth of resources to help you and your business with all things people management. Give our friendly team a call on 0161 603 2167 today, or email us at [email protected] to see how we can help!
We know that running your business is a 24/7 job, and with the ever-evolving nature of HR, it’s easy to see how employment law updates and changes can be overlooked.
New changes tend to come in every April, so it’s important not to get caught short when it comes to legal compliance for payments like minimum wage, holiday pay and family friendly payments.
Changes for April 2022
Minimum wage and other statutory rate increases
Following the government’s confirmation that minimum wage rates will increase from April 2022, the updated rates are:
National Living Wage (23+) £8.91 £9.50
21-22 Year Old Rate £8.36 £9.18
18-20 Year Old Rate £6.56 £6.83
16-17 Year Old Rate £4.62 £4.81
Apprentice Rate £4.30 £4.81
Accommodation Offset £8.36 £8.70
Family friendly payments
Leave rates for family friendly payments are also due to change. Going from £151.97 to £156.66 per week are:
Maternity pay
Paternity pay
Adoption pay
Shared parental pay and
Parental bereavement leave.
Statutory sick pay
SSP is also changing from £96.35 per week to £99.35 per week.
The lower earnings limit used to calculate entitlement to family leave and sick pay will rise to £123 per week.
Gender pay gap reporting
For companies with 250+ staff members, there’s an obligation to publish annual gender pay gap reports (this came in in 2018).
In the report, differences in the average earnings between men and women in your company should be outlined.
You will need to take a snapshot of your company’s pay data on a specific date in order to provide this.
For example, in 2022 this ‘snapshot date’ will be 30 March 2021 for companies in the public sector. In the private sector, 5 April 2020 will be the snapshot date.
Reporting deadlines
2022 reporting deadlines:
- 30thMarch 2022 – public sector employers
- 4thApril 2022 – private sector employers and voluntary organisations.
COVID-related changes
From the 1st April, the current guidance on voluntary COVID-status certification in domestic settings will be removed.
Also, the government will no longer recommend that venues use the NHS COVID Pass.
Other changes to be aware of
2022 sees a number of changes set to come in with dates TBC, including:
- Flexible working – the government is considering the option to allow employees to request flexible working from day one of employment following a consultation (influenced by the pandemic wfh arrangements)
- Ethnicity and disability pay gap reporting – steps towards standardising this type of report
- Data protection – the ICO is issuing updated employment practice guidance on data this year
- Sexual harassment – A new duty for employers to prevent sexual harassment in the workplace
- Right-to-work checks – The pandemic resulted in a digitised scheme, which was met with positive feedback. Consequently, this is being made permanent
- Modern Slavery – Modern Slavery Act reforms are expected towards the latter end of 2022. Your anti-slavery statements may need updating following this change.
Contact us today at [email protected] to obtain your FREE statutory rates guide for 2022 (it would look lovely in your office!) and read our previous article here
Mr Moore was referred to as an ‘old white man’ by his colleague whilst at work in Sean Pong Tyres in Rotherham. He has since been awarded over £22,000 after winning his claim for race and age discrimination at an Employment Tribunal after such comments led to him being signed off work with depression.
The claimant was called ‘gay white man’, ‘old white man’ and colleagues said he was ‘lazy’ and ‘too old’ to work effectively in a physically demanding role unloading tyres for export.
The team at the tyre company was small consisting of 3 Ghanaian workers who regularly spoke in a language that the claimant could not understand.
The owner of the company suggested that Moore’s complaint was an attempt to manufacture a legal claim against the company, and reported that the colleague accused of the inappropriate comments did regularly use bad language when speaking to the claimant, however this was only in response to similar bad language directed at him by Moore (the claimant).
The company owner further dismissed this behaviour as ‘banter’, claiming that Owusu, the accused member of staff, had never used racist language towards the claimant.
Moore felt the comments to him were intimidating. He wrote a complaint to Frimpong, the company owner, in January 2021, stating: “Since [the accused colleague] started at the company he has done nothing but single me out and slurring abuse at me causing a lot of stress and sleepless nights. This letter is a last resort for me and in hopes [sic] you are able to resolve this matter.”
It was found that the employer was liable for Owusu’s behaviour which “tipped over at some point into hostility”.
The judgment states “He may not have appreciated the effect he was having on Mr Moore but in our view it did create a hostile and intimidating working environment and amounted to bullying and harassment. We are also satisfied that that harassment was related to race and age since this was expressly stated.”
The tribunal dismissed a complaint of sexual orientation discrimination, made in relation to incorrect comments about Moore being gay, as this was “just the odd remark” and did not meet the harassment threshold.
On 1 February 2021, Moore left work early unexplained. Later the same day, he messaged Frimpong stating he was attending an MRI scan and blood tests, which suggested he had suffered a panic attack or a suspected heart attack. He was subsequently signed off work with depression.
On 3 March, Moore emailed Frimpong further about his health problems including pain down the right side of his neck and arm. The employer’s response stated: “if you are not coming again could you please be straight and tell me thanks”.
The tribunal stated that this message indicated there was “no real concern” for Moore’s health from the Employer.
Moore then submitted his resignation in in April 2021, stating: “The situation has gotten so bad causing me many days of stress, upset, and sleepless nights and loss of appetite. This situation has also affected my mental health and gave me no choice but to seek medical help.”
As it was proven that Moore was discriminated against, the tribunal concluded that he had been entitled to resign and make a claim of constructive and unfair dismissal.
The Prime Minister is under mounting pressure from Conservative MPs and leaders in the health and social care realm to delay or scrap the implementation of the covid vaccine mandate which at the time of writing (24th Jan 2022) is due to come in in April 2022.
The main reason that this mandate is coming under fire is the undeniably huge staff shortages in the health and social care sector. There is an argument that it would be detrimental to the NHS waiting times if the mandate is imposed.
Plan B restrictions are due to lift now Omicron cases are declining. However, it is now in question whether the government’s mandatory coronavirus vaccine policy is a proportionate response to the pandemic, now that it’s becoming more of an endemic.
The new regulations that are due to come into place on 1st April 2022 are the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2022.
These regulations would see Covid vaccinations being a condition of deployment for everyone in a health and social care setting in England, who are engaged or employed in a CQC–regulated activity, this includes those who are employed to undertake personal care or direct treatment as part of a CQC–regulated activity, who have face-to-face, direct contact with service users or patients.
Non-clinical ancillary workers who enter CQC-regulated areas in their work will also fall under these regulations. This includes receptionists, porters cleaners etc. There’s a 12 week grace period in which affected workers can provide evidence that they are either exempt or fully vaccinated, from 6 January 2022–31 March 2022. Workers face being dismissed from their roles if they cannot be redeployed.
Therefore, workers must have had their first dose of the vaccine by 3rd February 2022 to accommodate the eight weeks between doses.
Because of the looming deadline, MPs and leaders of health and social care who oppose the mandates are now putting pressure on the PM to do a U-turn on the policy.
The Guardian reports that the PM told backbench Tory MPs on Friday he was “looking again” at the mandate. This could end in the regulations being cancelled or delayed, however, at the time of writing we are simply unsure.
In conclusion, employers who fall under the new proposed legal requirements should continue in the preparation to comply with the regulations coming in in April, but keep an ear to the ground on developments. We will update as the situation develops.
If you’re affected by this topic, Supportis specialise in HR, employment law and health and safety advice for UK employers. Give our friendly team a no obligation, free call today on 0161 603 2156.
It’s been in the headlines recently that companies such as IKEA and Next have cut sick pay for unvaccinated staff.
The changes that have been implemented include unvaccinated staff only receiving statutory sick pay in cases of self-isolation, if they’ve been named as a close contact of a positive case.
IKEA has announced exceptions will be made for employees who are unvaccinated for “good reason” which will be considered based on individual circumstances.
Similarly, with positive cases of unvaccinated staff, full contractual sick pay will be received for the period of self isolation.
Current rules as dictated by the UK government require covid positive people to self isolate for a period of at least five days.
However, anyone who has had both doses of their coronavirus vaccination, or is medically exempt from being vaccinated, isn’t required to self isolate if they’ve been in close contact with a positive case. Unvaccinated people who don’t have a medical exemption have to isolate for a full 10 days.
Here we discuss some points to consider if you’re thinking about amending your sick pay policy for unvaccinated staff….
What sick pay scheme do you currently have in place?
Any previous contractual sick pay scheme over and above statutory sick pay should be stipulated in contractual clauses in your employment documentation, namely, your employment contracts and of course stringently followed to mitigate risks of discrimination and or unpaid wages claims.
If you don’t have a contractual sick pay scheme (over and above statutory sick pay), you need to continue paying staff who have to self isolate either because they are a positive case or unnamed close contact with a positive case, including instances where the staff member isn’t actually feeling ill but self-isolating to protect others from catching the virus.
If you do have a contractual sick pay policy (you pay over and above statutory sick pay for periods of sickness), it may be possible to treat vaccinated stuff ‘more favourably’ than those who haven’t in terms of sick pay. However, you’ll need to amend your policy first, which isn’t as straightforward as simply amending and issuing.
Such policy changes amount to a change in an employee’s fundamental terms and conditions of employment; You must therefore follow proper process and procedure which may be timely, and face opposition.
You will most likely need to collectively consult your employees on the change, either with a trade union representative or employee representatives if your employees aren’t part of a trade union.
You need to scrutinise your current and proposed contractual wording, as even if your documentation states “we reserve the right to amend this clause from time to time”, you’re still under an obligation to consult and seek agreement from employees before implementing change.
It’s important to note that if you do make changes without seeking agreement or without following a proper procedure, this poses a risk of staff resignation and subsequent claims of constructive unfair dismissal. Although this can only be brought by employees with two years’ service, they could also decide to work under protest and claim for unpaid wages if you dock sick pay.
My sick pay policy is discretionary. Does this mean I can cut pay for unvaccinated staff?
If your sick pay policy in place is discretionary, this will work to your advantage as you have more scope to amend the policy. However, you must be able to evidence that you have exercised your discretion to change the policy in a non-discriminatory, reasonable way to mitigate risk of potential tribunal claims.
You also need to consider carefully the types of amendments you want to make. Although the fact that fully vaccinated and boosted people are less likely to contract or transmit coronavirus is evidenced, they can of course still become infected.
It’s also debatable whether it’s reasonable (or would be in the eyes of a tribunal) to distinguish between unvaccinated and vaccinated covid positive staff.
Of course, people don’t catch covid deliberately And it would be reasonable for someone to expect to be paid the same as anybody else in their organisation if they’re unable to work.
In terms of withholding sick pay for those who have to isolate for longer because they’re unvaccinated (for the full 10 days in comparison to 5 days for a vaccinated person) it can be argued that you would have more grounds to withhold sick pay in this case.
What are the risks I need to consider in terms of potential claims against my business?
If you were to introduce a policy that clearly distinguishes between the vaccination status of your workforce, this could be considered indirect discrimination against specific protected groups.
For example, evidence shows that black and South Asian people are less likely to be vaccinated than white people, particularly within the older demographic.
Another example is women hesitant that the vaccine could potentially affect fertility or cause harm to unborn babies if they are pregnant, despite these beliefs being at odds with medical advice.
It’s also been argued by those who are considered “anti-vaxx” that their concerns about vaccination are protected beliefs under the Equality Act 2010.
A tribunal did recently conclude that fear of COVID-19 was not a protected characteristic, however this doesn’t mean fear of vaccination or needles would not be. At the time of writing, Supportis aren’t aware of reported tribunal cases on this particular point.
Even if it was proven that your employees’ belief is recognised under the EA, this doesn’t automatically mean they would be successful in claiming against you if you were to withhold sick pay.
The Equality Act says discrimination can be justified if the person who’s discriminating against you can show it’s a proportionate means of achieving a legitimate aim. If necessary, it’s the courts which will decide if discrimination can be justified.
What are the GDPR implications of asking staff about the vaccination status?
This is a contentious point, someone’s vaccination status is classed as special category data, it is not disputed that this is their private health information and therefore warrants added protection.
Under GDPR, your use of special category data must be lawful, fair and transparent.
You must also be able to evidence that you have limited your knowledge of this data only to that which is relevant and necessary for a specific purpose.
Moreover, having a lawful reason for processing information about staff vaccination status is the first element that you will need to evidence.
Employment conditions would likely be considered necessary for the purpose of carrying out obligations and exercising specific rights in the field of employment law.
The ICO has previously published guidance on Covid pass checks and vaccination, but not explicitly expressed which condition may apply where an employer processes information about staff vaccination status in order to make a decision surrounding pay.
This raises a problematic point, as employers could rely on employment condition as a reason to process vaccination status for the purposes of paying statutory sick pay, but it remains unclear whether this would also cover a contractual sick pay scheme.
Additionally, even if you are are able to establish that you have a lawful basis to process vaccination data, there are then a myriad of other obligations under GDPR.
You must evidence that your reasons are clear, necessary, and transparent and you must understand that this information is not to be used for a reason that your staff wouldn’t reasonably expect, or in ways that may result in unjustified or unfair treatment.
To conclude this point, your workforce must understand that you’re using this information to determine whether they’re eligible to receive contractual sick pay over and above statutory sick pay.
So, what is reasonable to ask staff in regard to vaccination?
You must minimise data you do collect, and only record data that you actually need. It’s not admissible to collect special category data including somebody’s personal health data “just in case“.
In the context of a staff member’s vaccination status, you would only need to record whether they’ve been fully vaccinated (either a yes or no) and also whether the second dose took place at least two weeks before you recorded this information. It’s arguable that it would be unreasonable to collect data such as what type of vaccine was received, if the booster jab has been received, or reasons why staff chose not to be vaccinated.
You also must consider allegations may be raised that you have collected unnecessary data by hesitant staff, therefore we would advise not collecting peoples’ data before you need to. For example, ask yourself: is it necessary to collate vaccination status info if the staff member is self isolating and you intend to reduce that sick pay? The answer would clearly be yes in this case, however, going around the office and asking everybody’s vaccination status regardless of whether they are self isolating would likely not to be seen as reasonable.
Of course, as with all personal data obtained, it’s important to ensure accurate recording of information, and that the data isn’t capped for longer than necessary.
If I make sick pay decisions based on whether someone is self isolating or not rather than on vaccination status, does this still have GDPR implications?
At the time of writing, the current legal requirement for anyone who is unvaccinated who is a close contact of somebody with coronavirus is a self isolation period of 10 days. People with medical exemptions are treated in the same way as a fully vaccinated person and therefore don’t have to self isolate even if they are named as a contact of a positive case.
Therefore, if an employee phones in sick because they have to self isolate for a full 10 days as they have been named as a close contact of a covid positive person, it is safe to assume that they haven’t been vaccinated. It wouldn’t be necessary to record this information, and you can simply notify your payroll that this staff member would only be entitled to SSP.
However, if this turns into a discussion about the vaccination status of this employee and you make a note of that conversation (which is likely), you do need to comply with GDPR. Similarly, if you do intend to exercise discretion (such as the likes of IKEA and Next), you will need to find out why somebody hasn’t been vaccinated, therefore rendering you obligated to comply with GDPR.
What other risks need to be mitigated?
Reducing the pay of unvaccinated employees who are isolating because they are a close contact of a positive case poses the risk that they may attend work anyway if they know that they aren’t going to receive anything above SSP for their isolation period, of course this is a criminal offence, or they could pretend that they are ill and unable to come into work.
Clear communication in policy/letter format (which Supportis can assist with!) is paramount, setting out your expectations of how staff should behave and what steps to take when they’ve been identified as a close contact of a positive case. Breaches of any such policy would likely amount to a disciplinary offence. We can also guide you through any HR process, even chairing meetings at all stages of the procedure.
If you’re unsure where you stand legally with any of the topics discussed above, or you need any HR and employment law assistance, don’t hesitate to contact our friendly team for a free, no-obligation chat today on 0161 603 2156 about your people management concerns.