Key employment law updates | February 2022

Evidence heard on whether the menopause should be a protected characteristic

In January 2022, the Women and Equalities Select Committee (WESC) heard evidence from employment lawyers as part of its inquiry into menopause and the workplace. The discussion queried whether menopause should be made a legally protected characteristic in its own right. Some women face discrimination in the workplace as a result of either actual or perceived menopause. At present, anyone experiencing such discrimination has to rely on existing legal protections such as disability or sex discrimination under the Equality Act 2010 to argue their case.

Acas publishes new advice on bereavement in the workplace

Acas' Chief Executive Susan Clews highlighted the impact of the pandemic on staff by preventing them from grieving in usual ways and emphasised the need for employers to sensitively handle bereavement. 

Acas reminds employers that employees have legal rights to unpaid bereavement leave and advises employers to recognise that grief affects individuals differently and can manifest in different ways, and as such, employers should be sensitive and consider the person's emotional and physical well-being after they have returned to work.

The full Acas bereavement advice for employers and employees can be found here.

Many gig workers and contractors may be classified as employees under proposed new EU directive

A new directive is being considered in respect of low-paid workers operating frequently via apps and digital labour platforms. The new directive contains a stringent employment status test, capturing contractors who would otherwise have been considered self-employed. There is a chance the wide scope of the definition of "digital labour platform" also captures contractors who work through traditional staffing companies. These platforms and staffing companies (some of which may be based in the UK) that organise work for individuals in the EU may need to establish and pay tax (including VAT) in each relevant EU country the workers are based in under the new directive, which would increase liabilities and costs.

The Commission intends this to become law by 2024, although this remains to be seen. If it does pass, there are still practical implications for non-EU members states, such as the UK. It may be that the UK will chose to adopt a similar approach, which may have implications for IR35. For the moment, it is one to keep an eye on.

Auto-enrolment – ten years on

The regime requiring all employers in the UK to enrol eligible staff into a pension scheme (auto-enrolment) reaches its 10^th anniversary this year. The current criteria for auto-enrolment is potentially changing moving forward as a private member's bill, submitted on 5 January 2022, the bill has outlined a roadmap for extending auto-enrolment to a lower age threshold (18 instead of over 22) and removing the earnings trigger on the lower qualifying earnings limit over a four-year period.

The proposed amends are designed to help benefit those on lower-paid and part-time work, offering people the opportunity to save into their pensions earlier. However, the timing is still unclear, and with many companies still reeling from the impact of the pandemic, it remains to be seen when this more costly (for employers) change comes into force.

Tips earned by workers to go to workers

The intention of a tip in is to go directly to the worker(s) in question. However, we all know this is not always the case. Legislation is in the pipeline to make it a requirement that employers pass all tips, gratuities, and service charges to workers without deductions. The distribution will need to be in a fair and transparent manner and a new right for workers to make a request for information relating to employer's tipping record will be included. This would enable workers to potentially bring a claim in an employment tribunal for an employer's failure to do so.

The rules are not anticipated to commence sooner than one year after the legislation has passed (which is currently due to be passed "when parliamentary time allows"), therefore employers will have sufficient time to adjust business practices as needed.

Carers now eligible for skilled worker sponsorship

As of 15 February 2022, carers are eligible for skilled worker sponsorship. This means they will be able to apply for the Health and Care Worker visa subcategory of the Skilled Worker route. This recognition on the skilled worker shortage occupation list was confirmed in a statement of changes to the immigration rules published in January 2022. Initially, these arrangements will be in place for 12 months with a review to determine continued need in late 2022.

For applications made on or after 15 February 2022, these requirements must be satisfied:

• The applicant has a job offer under standard occupational classification (SOC) code 6145. This includes care assistants; care workers; carers; home care assistants; home carers; and nursing home support workers
• The job offer is from a sponsor licensed by the Home Office under the skilled worker route
• The applicant will not be working for a private household or individual (a sole trader sponsoring the applicant to work for their business is excepted)
• The sponsor is approved by the Home Office to sponsor workers under the Health and Care Worker visa (usually the NHS)
• The salary for the job is at least £20,480 or £10.10 per hour, whichever is higher (there is no 'going rate' specified for this occupation code)
• The applicant provides acceptable criminal record certificates from all countries that they have lived in for 12 or more months in the last 10 years, and while they were aged 18 or over
• The applicant meets the English language, tuberculosis screening and financial requirements of the skilled worker route
• When assigning a certificate of sponsorship, the sponsor will need to include an explanation of how the Health and Care visa requirements are met