The National Living Wage and National Minimum Wage rates go up on 1 April 2022 and the new rates will be as follows:
New National Living Wage & National Minimum Wage Rates
These rates are for the National Living Wage (for those aged 23 and over) and the National Minimum Wage (for those of at least school leaving age). The rates change on 1 April every year.
23 and over
21 to 22
18 to 20
Under 18
Apprentice
New Rates from 1 April 2022 – 31 March 2023
£9.50
£9.18
£6.83
£4.81
£4.81
Current Rates until 31 March 2022
£8.91
£8.36
£6.56
£4.62
£4.30
Apprentices are entitled to the apprentice rate if they’re either:
aged under 19
aged 19 or over and in the first year of their apprenticeship
About the National Minimum Wage (NMW)
The national minimum wage (NMW) is a prescribed minimum hourly rate of pay which employers must legally pay to most of their workers.
There are five different rates of NMW for different age-related categories of worker:
National living wage. Since 6 April 2021 this applies to workers aged 23 or over. The NLW was initially set by the government in April 2016 at 50p above the standard adult rate, but is now a separate age-related hourly rate.
Standard (adult) rate. For workers aged 21 and 22.
Development rate. For workers aged between 18 and 20 inclusive.
Young workers rate. For workers aged under 18 but above the compulsory school age, that are not apprentices.
Apprentice rate. For apprentices under 19 years of age or those aged 19 and over but in the first year of their apprenticeship.
A worker is entitled to the rate that applies at the start of a particular pay reference period even if the NMW rates are changed or the worker becomes entitled to a different rate during that reference period (regulation 4B, NMW Regulations 2015).
The Immigration Act (IA) 2016 includes key measures to combat illegal working and employers who fail in their legal obligations to undertake them face stiff penalties.
Right to Work Checks to Prevent Illegal Working in the UK
Employers have a legal obligation to prevent illegal working and any employer who employs someone who does not have the right to reside and the appropriate right to work in the UK, or who is someone breaching their conditions to say, will be breaking the law.
To comply with their obligation to prevent illegal working, an employer must:
Carry out “right to work” checks on all prospective employees before the employment starts. The three-step checks that employers must undertake to comply with the law and secure the statutory excuse are to:
Obtain the employee’s original documents as prescribed in the Home Office guidance.
Check (in the presence of the prospective employee) that the documents relate to the individual and are original, unaltered and valid.
Copy the documents and record the date of the check and date for follow-up checks and retain copies of the documents securely (this can be a hardcopy or a scanned copy in a format which cannot be manually altered, such as a JPEG or a PDF file).
The steps to be followed in order to establish the statutory excuse, including examples of immigration documents that can be accepted as evidence of eligibility to work, are set out in Home Office guidance.
Conduct follow-up checks on employees who have a time-limited permission to live and work in the UK or require a document to evidence their right as in the case of non-EEA family members of EEA or Swiss nationals (up to 30 June 2021 when the grace period for applying under the EU Settlement Scheme (EUSS) ends), or an application pending.
Keep records of all the checks carried out.
Not employ anyone it knows or has reasonable cause to believe is an illegal worker.
Where the employer is also a sponsor under the points-based system, it must also comply with the sponsor management system requirements.
Temporary changes to right to work checks due to COVID-19 pandemic
Temporary changes were made to the right to work check requirements due to the COVID-19 outbreak to make the process easier for employers. From 30 March 2020 to 5 April 2022 (inclusive), employers can complete a right to work check via a video call. The employer must:
Ask the individual to submit a scanned copy or a photo of their original documents by email or using a mobile app.
Arrange a video call with the individual and ask them to hold up their original documents to the camera so that they can be checked against the digital copy they have been sent.
Record the date they conduct the check and note “Adjusted check undertaken on [insert date] due to COVID-19” on a copy of the documents.
If the individual has a Biometric Residence Permit, Biometric Residence Card or status under the EU Settlement Scheme, the employer can use the online right to work checking service during a video call, but the individual must give the employer permission to view their details.
If the individual cannot provide the required documents, the employer should contact the Home Office’s Employer Checking Service. If the individual has the right to work, the employer will receive a “positive verification notice”.
This provides a statutory excuse for six months from the date of the notice.
The Home Office originally indicated that employers would have eight weeks from when the COVID-19 measures end to carry out retrospective right to work checks, in the usual way, on employees who commenced employment or required a follow-up check while these temporary measures were in place. However, it has subsequently announced that retrospective checks will not be required and employers will maintain a statutory defence against a civil penalty if the check undertaken during this period was conducted in the prescribed manner or as set out in the COVID-19 adjusted checks guidance (see GOV.UK: Coronavirus (COVID-19): right to work checks).
From 6 April 2022, the standard right to work check regime will apply.
However, in December 2021 the Home Office announced that from April 2022 checks for individuals carrying Biometric Resident Cards, Biometric Resident Permits or Frontier Worker Permits can only be done online, and that manual checks will not be possible. British and Irish nationals are excluded.
Employer must obtain original documents
The employer must request, and the individual must provide, certain prescribed original documents to establish their eligibility to undertake the work on offer.
The types of documents that are required depend on whether the person has an unrestricted right to live and work in the UK such as a British citizen or person with indefinite leave to remain status; or is subject to immigration control.
Increased measures to combat illegal working mean that employers in breach of their obligations may now be liable for a large civil penalty and commit a criminal offence:
A civil penalty may be imposed if an employer employs someone without the right to undertake the work for which they are employed (section 15, IANA 2006). The maximum civil penalty is £20,000 for each individual who does not have the right to work and outstanding penalties are registered with the civil court, after which enforcement action may be taken immediately.
A criminal offence will be committed if an employer knew or had “reasonable cause to believe” that the employee did not have the appropriate immigration status (section 21, IANA 2006). On summary conviction, an employer may receive an unlimited fine or imprisonment of up to six months (or both). Following conviction on indictment, the employer may also be subject to imprisonment for a maximum period of five years.
Immigration Act 2016
The Immigration Act (IA) 2016 includes these key measures to combat illegal working:
An extension of the criminal offence of knowingly employing an illegal migrant (see Offence of employing an illegal migrant) to include circumstances where an employer has “reasonable cause to believe” that a person is an illegal worker. This came into force on 12 July 2016.
An increase in the conviction on indictment for that offence from two to five years. This came into force on 12 July 2016.
A power to impose compliance sanctions and close businesses that continue to employ illegal workers. This provision came into force on 1 December 2016.
Increased powers for immigration officers to enter business premises to search for documents and to seize and retain evidence in relation to an offence. These came into force on 12 July 2016.
Creation of a new offence of illegal working to enable the earnings of illegal workers to be seized under the Proceeds of Crime Act 2002. This came into force on 12 July 2016.
A requirement that public authorities ensure that public sector workers in customer-facing roles speak fluent English. This provision came into force on 21 November 2016.
A power to appoint a new Director of Labour Market Enforcement to oversee labour market regulators and to provide a co-ordinated strategy for enforcement and compliance. This came into force on 12 July 2016.
The concept of temporary admission and release from detention was replaced by the concept of immigration bail by section 61 of the Immigration Act 2016, which is yet to be commenced. In the interim period, regulation 2 of the Immigration Act 2016 (Transitional Provision) Regulations 2016 (SI 2016/712) ensures that those persons on temporary admission or release from detention with permission to work do not commit the offence of illegal working, provided that they comply with any restrictions issues as to their employment under paragraph 21(2) of Schedule 2 to the Immigration Act 1971. The regulations came into force on 5 July 2016.
The law and rules on preventing illegal working and establishing the right to work in the UK are complex and appropriate advice should be taken to ensure compliance.
Do You Need Assistance With Employment Law Issues?
The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers on their legal obligations to prevent illegal working in the UK. If you have any queries about your legal duties to prevent illegal working in the UK and/or avoiding Home Office fines, you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.
On 6 January 2022 changes to the mandatory vaccination requirement that currently applies to care home workers in England under the Health and Social Care Act 2008 were implemented.
The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2022 (SI 2022/15) were made on 6 January 2022 and implement changes to the mandatory vaccination requirement that currently applies to care home workers in England under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (2014/2936) (the 2014 Regulations).
The following changes were made on 7 January 2022 under regulation 3:
Individuals who have not previously been employed or engaged in the care home can be deployed if they have received a single dose at least 21 days before starting work. They must then obtain a second dose within 10 weeks of the first.
There is now an exemption for those taking part in clinical trials.
On 1 April 2022, further amendments under regulation 4 will extend the mandatory vaccination requirement to those working in “any other regulated activity” outside a care home. Regulated activities are listed in Schedule 1 of the 2014 Regulations, and include nursing and personal care, and most forms of health care including medical treatment, surgery, diagnostic services, ambulance services, midwifery and dentistry among other things. The vaccination requirement will not apply where the person is under 18, is clinically exempt, has no face-to-face contact with service users, or where the regulated activity is part of a “shared lives agreement”. Similar exemptions will apply in relation to clinical trials and new employees who have only received one dose of vaccine.
Regulation 4 also makes provision for individuals who have received a course of certain COVID-19 vaccines not authorised for use in the UK.
As we near the end of the first week back after the festive period, we take a look at what employers can expect in the area of Employment Law in 2022 including, the updated data protection and employment practices guidance expected from the Information Commissioner’s Office, a new duty on employers to prevent sexual harassment, and flexible or hybrid working.
Seasonal Worker visa route extended to 2024
On 24 December 2021, the Home Office and Department for Environment, Food and Rural Affairs (DEFRA) announced the extension of the Seasonal Worker visa route to the end of 2024. The visa route enables foreign workers to come to the UK to work in the horticulture sector for up to six months to pick both edible and ornamental crops. Some changes will be made to the scheme in response to the seasonal workers pilot 2019 review, including the requirement for companies to pay workers a minimum wage to improve conditions. At least 30,000 visas will be available in 2022, but the number of available visas will begin to taper off in 2023. The government will also require the sector to do more to attract UK workers, such as offering training, career options and wage increases.
Flexible working
The pandemic shifted and centralised the issue of flexible working for many employers and workers and, although perhaps temporary, in periods of fewer restrictions many employees returned to offices on a hybrid basis. A government consultation on making flexible working the “default position” ran from September to December 2021 and set out five proposals including making flexible working a day one right. Note that the government’s proposals do not introduce an automatic right for employees to work flexibly. Rather, the proposals include a number of measures to broaden the scope of the right, while retaining the basic system involving a conversation between employer and employee about how to balance work requirements and individual needs, potentially changing the statutory business reasons for refusing a flexible working request. As the consultation closed on 1 December 2021, it is unlikely there will be a response from the government until the latter half of 2022.
Some developing themes which employers may continue to face in 2022 include requests from employees to work flexibly abroad and the impact on wellbeing of continued working from home. Following research about the significant amount of hidden overtime while working from home during the pandemic, there have also been calls for the government to introduce a “right to disconnect”. This has recently been brought into effect in some European countries and is being discussed by the Scottish Government in relation to their own employees. It was also mentioned in a briefing paper on hybrid working published by the House of Commons Library in November 2021.
Vaccinations at work
On 1 April 2022, following a consultation, regulations come into force which will make vaccination against COVID-19 a requirement for health and social care workers in a face-to-face role. It remains to be seen how employers in this sector will deal with unvaccinated employees, whether consultation with unvaccinated employees is necessary where there are large-scale dismissals and whether redeployment will be possible. Employers in other sectors, who have a duty to maintain a safe workplace, have been encouraging staff to get vaccinated. Absent further government requirements on mandatory vaccinations, there would be risks for employers who may want to make vaccination a requirement for new or existing staff. The key legal problem will be the risk of potential unfair dismissal, and potential discrimination claims if employees are dismissed for refusing to be vaccinated and the employer is unable to justify dismissal as a proportionate means of achieving a legitimate aim.
Review of gender pay gap reporting regulations
By April 2022, the government must review the gender pay gap regulations as they are obliged to do so within five years of the regulations coming into force (regulation 16(3), Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (SI (2017/172)). The purpose of this review will be to assess the extent to which the reporting requirement achieved the objectives of the regulations, whether the objectives remain appropriate and whether any unnecessary burden is placed on employers.
New duty to prevent sexual harassment
On 21 July 2021, the government published its response to the 2019 consultation on workplace sexual harassment. The response confirmed a new duty for employers to prevent sexual and third-party harassment, which is likely to include a defence where an employer has taken “all reasonable steps” to prevent the harassment. The government will also consider the proposal to extend the time limits for claims under the Equality Act 2010 but has not yet committed to making any changes. The duty will come into force when Parliamentary time allows.
Data protection
Several data protection developments are likely to impact employment practitioners in 2022. The Department for Culture, Media and Sport (DCMS) proposed data protection reforms in its consultation which closed on 19 November 2021. The primary objective of the consultation was to seek views on the proposals to reduce the burden data protection places on businesses. In addition, the government sought views on how Article 22 of the UK GDPR should be interpreted in the context of artificial intelligence (AI) in several areas, including where it related to automated decision-making.
We are also expecting to see updated data protection and employment practices guidance in 2022 from the Information Commissioner’s Office (ICO), following a call for views which ran until 28 October 2021. The new guidance will finally replace the ICO’s employment practices code, supplementary guidance and the quick guide, which have not been updated since the Data Protection Act 2018 came into force. The new guidance will cover topics including recruitment and selection, employment records, monitoring of workers, and information about workers’ health.
Human Rights Act 1998
In 2020, the government announced the launch of an independent review of the Human Rights Act 1998 (HRA 1998), while emphasising its ongoing commitment to the European Convention on Human Rights. The Independent Human Rights Act Review (IHRAR), conducted by an independent panel chaired by Sir Peter Gross, a former Court of Appeal judge, reported back to the government on 29 October 2021. On 14 December 2021, the Ministry of Justice published Human Rights Act Reform: A Modern Bill Of Rights, a consultation on replacing the HRA 1998 with a Bill of Rights. The full report conducted by the IHRAR Panel was also published on 14 December 2021. Whether the right to a jury trial should be recognised in the Bill of Rights and the introduction of a permission stage for human rights claims where claimants must establish they have suffered “significant disadvantage” or that the claim is of “overriding public importance” are key proposals included in the consultation document.
Many of the proposals are regarded as highly controversial. However, it should be recognised that the proposals are simply being consulted on at this stage and therefore whether they are then made into law remains to be seen following the close of the consultation in March 2022.
As the clock winds down on 2021, here’s hoping there are far better things ahead than any we leave behind!
As Bill Vaughan famously said, “an optimist stays up until midnight to see the New Year in. A pessimist stays up to make sure the old year leaves.” Whatever you’re planning this Hogmanay, we wish you well and to all our clients and suppliers, best wishes for a very happy, healthy and prosperous New Year from the team at Employment Law Services (ELS) LTD.
After another challenging year enduring the continuing effects of the pandemic and the inconceivable loss it has incurred for so many people and on so many levels, many will be feeling weary and in serious need of the break the Christmas holiday provides.
As you start to wind down in preparation for the holiday, try to remember that Christmas is as much a feeling as it is a holiday. Christmas represents the birth of a new beginning and hope. We celebrate it by giving the light of love to those that need it most and we remember the importance of being good to one another, brightening each other’s lives and spreading joy, happiness and peace.
So, as another challenging year draws to a close, take the opportunity to spend that time doing whatever you need to do to recharge, recalibrate and refocus and, most importantly, give yourself permission to do what makes you feel better or good – you deserve it!
The team at Employment Law Services (ELS) LTD wish you and your families a peaceful and enjoyable Christmas and all the very best for a happy, healthy and prosperous New Year.
This afternoon, Chancellor Rishi Sunak announced the immediate reintroduction of the Statutory Sick Pay Scheme for SMEs which previously ended at the end of September 2021.
As part of a series of measures being provided by the UK Government which are intended to support UK companies being impacted by the OMICRON outbreak of the COVID-19 virus, Rishi Sunak announced today that the Statutory Sick Pay Rebate Scheme for SMEs will be reintroduced with immediate effect.
Businesses with fewer than 250 employees will be able to claim back up to 2 weeks of Statutory Sick Pay (SSP) using the UK Government’s online service from mid-January 2022 but will be eligible to make a claim from now. Further guidance will be available on the UK Government website as soon as possible.
The scheme covers all types of employment contracts, including:
full-time employees
part-time employees
employees on agency contracts
employees on flexible or zero-hour contracts
fixed term contracts (until the date their contract ends)
Different Deemed Incapacity Rules for SSP
The SSP deemed incapacity rules have been extended to cover those who self‑isolate in accordance with government guidelines and those who are shielding in accordance with a notification. SSP can be claimed from the first day of incapacity in respect of absences and online isolation notes can be used by employees to provide evidence to their employers that they have had to self-isolate.
Last week, the UK Government provided new guidance on what will amount to evidence of sickness for SSP purposes where the absence relates to COVID-19 following the introduction of new temporary rules on providing Fit Notes. See our previous update – New Temporary Rules on Fit Notes and Proof of Illness
With the latest working from home guidance and talk of a ‘circuit break’ after Christmas and into the New Year to try and combat the rapid spread of the OMICRON variant of COVID, many Employers will again be reviewing their approach to homeworking.
One of the consequences of the COVID-19 pandemic and the various levels of lockdown restrictions we have all had to endure is that homeworking has become the norm rather than the exception for many workers and the need for an effective homeworking policy has never been higher. This shift in approach to homeworking is likely to become more common in the future, whether as a full-time arrangement or as part of a hybrid working pattern.
Employers requiring a more tailored approach, a specific hybrid working policy and/or supporting amendments to contracts of employment can Contact us directly to discuss their specific needs.
Other Employers looking for a straightforward homeworking policy can simply download our FREE homeworking Policy. This policy has not been drafted to accommodate any temporary homeworking arrangements that may be in place due to the COVID-19 pandemic. However, it can be adapted if a temporary homeworking policy is required for these purposes.
From 17 December 2021, employees will not be required to provide their employer with medical evidence of sickness absence (a Fit Note) for the first 28 days of absence.
When can an employer require evidence of sickness for SSP purposes?
For the purposes of administering SSP, employers are not allowed to insist on a doctor’s certificate for at least the 28 days of an employee’s sickness absence. After that time, they may insist on a statutory fitnote or other reasonable evidence. The Statutory Sick Pay (Medical Evidence) Regulations 2021 (SI 2021/1453) (Medical Evidence Regulations 2021), which came into force on 17 December 2021 and modified the Medical Evidence Regulations 1985, is intended to increase GP capacity to support the COVID-19 booster programme.
Employees shall not be required to provide medical information in respect of the first 28 days of any spell of incapacity for work which either started during the period 17 December 2021 to 26 January 2022 or which commenced prior to 17 December 2021 but which had not lasted more than seven days on that date (so that the requirement to provide medical evidence had not yet arisen). In practice this means that employees can self-certify for absences of up to 28 days during the period that the modification introduced by the Medical Evidence Regulations 2021 applies.
What evidence can an employer require in relation to COVID-19-related absences?
Reasonable evidence is normally a fitnote from the employee’s doctor, but it can take other forms if reasonable in the circumstances.
The government confirmed that the following will amount to evidence of sickness for SSP purposes where the absence relates to COVID-19 (including where the employee is self-isolating in circumstances where SSP entitlement is triggered:
An isolation note from NHS 111 if they are self-isolating and cannot work because of COVID-19.
The notification from the NHS or public health authorities if they are self-isolating because they have come into contact with someone with COVID-19.
A fitnote as normal.
The NHS or GP letter telling them to stay at home (shield) for at least 12 weeks because they are at high risk of severe illness from COVID-19.
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