Employment law round-up: Autumn 2022

From ‘fire and rehire’ to Income Tax cuts, there have been numerous changes in employment law so far this year. As we approach Autumn and the final stretch of 2022, our employment solicitors summarise the key developments in employment law that may affect you.

New legislation around industrial action and Trade Unions

In July 2022, new legislation was announced to allow agency workers to carry out the work of strikers during industrial action. This aims to reduce disruption and improve employment opportunities for temporary workers.

In addition, the Government has also raised the damages cap that businesses can claim against a Trade Union if a strike is found unlawful in court.

Long Covid and disability

The effects of the Covid-19 pandemic continue to impact the employment landscape. As we all know by now, coronavirus affects everyone differently, and ‘long Covid’ is a relatively new concept that will likely take some time to fully understand.

We are starting to see long Covid cases in tribunal hearings, and it is important that employers keep an eye on how these claims are being treated to help you manage the effect of long Covid in the workplace. It is also a good idea to review your workplace sickness policy and include references to Covid-related illnesses and disabilities.

A specialist employment law solicitor can advise you on amending employment contracts and review any changes to ensure policies are effective.

Protected beliefs under the Equality Act

Recent case law has shown that a wide range of beliefs are eligible to be protected under the Equality Act 2010; even those that many would view as offensive. This protection supports a diverse and inclusive workplace but also creates opportunities for disagreement and can lead to discrimination claims.

A recent high-profile case, Forstater v CGD Europe, involved an employee (Ms Forstater) making several claims against their employer for direct discrimination when her contract was not renewed because she had expressed gender-critical beliefs which some of her colleagues found offensive. Ms Forstater shared her belief that people cannot change their biological sex and that it should not be related to gender identity; a view that her colleagues took offence to. She claimed that her gender-critical beliefs were protected under the Equality Act. The Employment Appeal Tribunal (EAT) agreed, confirming that the employee’s views would be protected as a philosophical belief under the Equality Act.

The above decision demonstrates that individuals will be afforded a level of protection for their philosophical or religious beliefs as long as these are not inappropriate or greatly offensive. It is, however, a balancing act.

National Insurance and Income Tax cuts

It was announced in the Spring Statement that, from July 2022, employees would be able to earn up to £12,570 a year without paying any National Insurance, and the basic rate of Income Tax would be cut from 20p to 19p per pound from April 2024.

In the ‘mini budget’, announced on 23^rd September 2022, this all changed. The Government revealed that the basic rate of Income Tax will be cut by 1p to 19p per pound from April 2023, a year earlier than planned. This is the biggest tax cut package since 1972 and means that an estimated 31 million people will be better off by an average of £170 per year.

The top rate of Income Tax (45% on earnings over £150,000) is also being replaced by a single rate of 40%.

The 1.25% rise in National Insurance contributions will be reversed on 6^th November 2023, affecting almost 28 million workers.

Whilst it is an employee’s responsibility to check their pay, employers should be proactive in updating payroll to reflect these changes to avoid any potential disputes.

Universal Credit

More than 100,000 people claiming Universal Credit will be asked to increase their working hours or find better-paid jobs, or risk a reduction in benefits.

Those working 12 hours per week at the national minimum wage are required to meet regularly with their job centre coach and take steps to increase their earnings. This will be expanded to those working 15 hours a week from January 2023.

Extra support will be provided for the unemployed over 50s.

Employment Allowance increase

In April 2022, the Employment Allowance increased from £4,000 to £5,000 for small businesses. The increase, which was announced in the Spring Statement, saves eligible business owners up to £1,000.

Business owners will pay less employer’s Class 1 National Insurance with each payroll until the allowance has gone or the tax year ends, whichever is first.

To be eligible, businesses must:

• Be registered as an employer
• Be a sole trader, limited company or partnership with employees
• Be a limited company that employs directors only and where two or more earn more than that secondary threshold for Class 1 National Insurance contributions
• Have had Class 1 National Insurance liabilities of less than £100,000 in the previous tax year

Employers should note that claiming the Employment Allowance isn’t automatic; business owners must tell HMRC that they qualify and want to claim.

Menopause policy

On 18^th July, the Government laid out its policy on menopause and employment following recommendations from a 2021 roundtable.

The policy states that:

• Changes to the Equality Act 2010 won’t be made as discrimination against menopause is already sufficiently covered by provisions for sex, age and disability
• Menopause taskforces will be set up to prioritise inclusion and diversity at work
• Government ‘menopause employment champions’ will be appointed and other large organisations are encouraged to do the same

In addition, the House of Commons Women and Equalities Committee produced a ‘Menopause and the workplace’ report in July 2022. This advises that menopause should become a protected characteristic and is liable to dual discrimination claims under the Equality Act, to assist in menopause claims.

This is one to watch, however, whilst it is not a legal requirement, employers might want to consider drawing up their own menopause policy that sets out guidelines for their workforce, if they do not already have one. These guidelines can include managers’ responsibilities when it comes to supporting colleagues who are going through or approaching menopause and signposting employees to support and training.

Paid leave for parents of neonatal babies

After uncertainty around the proposed Employment Bill that was due to introduce paid leave for parents of babies in neonatal care, a separate Private Members’ Bill covering neonatal leave, was put forward in July 2022.

The Neonatal Care (Leave and Pay) Bill would allow parents of babies who are up to 28 days old and have been in neonatal care for at least seven days, the right to take up to 12 weeks’ parental leave and statutory pay. The Government has confirmed it backs the Bill and it should shortly become law.

Right to work checks

Online right to work checks was introduced in 2018 but could only be used by eligible employees. Those not able to use this service, including UK and Irish nationals who make up the majority of employment-seekers, required in-person verification.

However, during the pandemic, Right to Work checks was temporarily relaxed to enable employers to continue hiring by carrying out all checks remotely, using video chat.

The easement was due to change on 6^th April but was extended until 30^th September 2022. From 1^st October, employers will need to complete their right to work checks in person or put appropriate systems in place to ensure fraudulent behaviour is avoided. 

‘Fire and rehire’

The Government will soon issue a new Statutory Code of Practice addressing ‘fire and rehire’ practices. This intends to guide employers on how to approach fire and re-hiring fairly and lawfully.

Courts and Tribunals will be required to consider this Code during relevant cases and compensation to employees can increase by up to 25% in cases where an employer has not followed the Code.

Need advice about employment law?

There have been a lot of changes for both employees and employers to get their heads around in the last year, and with a new Prime Minister and the cost of living crisis on the horizon, there will likely be more to come.

Whatever your needs, our employment law solicitors are here to help. From helping business owners update their policies and contracts, to advising employees on unfair dismissal and discrimination claims.

To speak to our employment lawyers, call us on 0117 325 2929 or complete our online enquiry form.