HR briefing - April 2022

19 April 2022

Welcome to this month's briefing for HR teams and in-house employment counsel – bringing you this month’s employment law highlights in an easy-to-read package.

Collective redundancy

The furore around the mass redundancies announced by P&O Ferries serves as a useful reminder of how employment issues can seriously undermine a company’s public image. The bullet points that all HR teams should have in mind when conducting any form of redundancy exercise are:

  • whenever 20 or more redundancies are under consideration, there may be an obligation to consult employees;
  • the precise trigger depends on the time frame over which the redundancies are being carried out. If the period is 90 days or less, consultation is likely to be required;
  • a further test is whether the redundancies are at the same "establishment" or not. An establishment is often a single site, but this is not necessarily the case, so specific advice should be sought in each case;
  • if consultation is required, this will either be with trade unions, if any is recognised in that workplace, or with employee representatives. Employee representatives may need to be elected specifically for this purpose;
  • there is no fixed time period for consultation, but no redundancies can take effect until at least 45 days from the start of consultation;
  • failure to go through a proper collective consultation exercise can result in Tribunal claims. Damages can reach 13 weeks’ pay for each employee; and
  • wherever collective consultation is mandatory, there is a parallel obligation to inform the Government via the HR1 form. Failure to comply is a criminal offence punishable by an unlimited fine.

Employment rates and limits

Many HR payment rates and limits – SSP, statutory maternity pay, unfair dismissal compensation, statutory redundancy pay and so on – are increased every April to take account of inflation. Please see the handy guide for the 2021/22 and 2022/23 rates.

The bands for injury to feelings awards – available in whistleblowing and discrimination claims – have also been increased. The so-called Vento bands are now:

  • Lower: £990 to £9,900
  • Middle: £9,900 to £29,600
  • Upper: £29,600 to £49,300

Equal pay

The Government has launched a voluntary pilot scheme that seeks to improve pay transparency. The scheme would see employers committing to publishing salaries on the face of their job adverts, a step intended to minimize the risk that male candidates will negotiate higher pay than female candidates, which has been thought to contribute to the ongoing gender pay gap.

Non-financial misconduct

Regulators across a number of industry sectors, including the Financial Conduct Authority and Solicitors Regulation Authority, have responded to societal shifts in the treatment of "banter" (exemplified by the #metoo movement) by focussing to an increasing degree on non-financial misconduct. In the insurance sector, regulated in part by Lloyds, a firm has recently experienced this renewed focus at first hand. Atrium Underwriters has been fined just over £1m for history of failures to engage with, and challenge, a culture of inappropriate conduct, held to have included initiation games, heavy drinking and making inappropriate and sexualised comments about female colleagues. Professional service firms will typically have equal opportunities policies already in place, but this example demonstrates the need to ensure that internal policies and training programmes adequately support those policies so that inappropriate culture is effectively challenged. 

Ethnicity pay gap reporting

Mandatory gender pay gap reporting has now been a feature of UK business for a number of years. Despite pressure to introduce a system of ethnicity pay gap reporting to sit alongside the gender reporting obligation, the Government has now confirmed that it has no plans to legislate in this area. In its response to the Commission on Race and Ethnic Disparities, it concludes (at paragraph 3.7) that this level of disclosure is best left as a voluntary measure. It remains to be seen whether ethnicity pay gap reporting will become the norm in some market sectors, whether because of institutional investor pressure or for recruitment and retention reasons.

Changes to Right to Work Checks from 6 April 2022

From 6 April 2022, employers undertaking right to work checks must use the online system for those new hires who hold the following:

  • Biometric Resident Permits (BRPs);
  • EU Settlement Scheme status;
  • Frontier Worker visas; or
  • Digital visas.

Previously, BRP card holders could have shown their physical cards but must now generate a share code.

Share codes are generated by the employee online.

Employers can verify the share code online.

Retrospective checks are not required where the right to work check for a BRP card holder was undertaken before 6 April 2022.

British and Irish nationals cannot verify their right to work online and should continue to show physical documents (for example, their passports) to employers on or before the first day of employment.

The temporary Covid-19 concession to allow this physical check to be undertaken over a remote video call has been extended until 30 September 2022.