Category: Employment Law

A tribunal recently ruled on the failure of a private limited company, El Recruitment Ltd., to submit its Re-DOC before the statutory deadline as required under the 'Employer Duties' of the Pensions Act 2008. The Pensions Regulator had sent two prior letters, although the company failed to do so and received a compliance notice addressed to the registered office address which was considered properly served.

The regulator unsuccessfully attempted to call the appellant using the number held within its records. El Recruitment did not complete the Re-DOC by the extended deadline and so the Pensions Regulator issued a £400 fixed penalty per Section 144A of the Act.

The director argued that they had moved out of the registered office and forgot to update the registered office address, although they could not be reached by telephone. However, the Tribunal was unmoved and unconvinced by this argument, as one of the reminders had been sent before the move and was still ignored.

While the Pensions Regulator is not obliged to send reminder communications it usually does so as a courtesy and the Company’s appeal over its £400 fine was unsuccessful. This case highlights the importance of filing promptly and allowing sufficient time for delivery.  Re-enrolment must take place every three years at a date of your choosing. To do so today visit https://declaration.ae.tpr.gov.uk/

Despite an appeal, the Courts recently found against Bolt in relation to their attempts to evade the statutory entitlements of their drivers to a minimum wage and holiday pay.  The ruling confirms that 10,000 Bolt drivers employed on what was erroneously conceived to be an ‘agency arrangement’ as freelance contractors are indeed entitled to minimum pay, sick leave and paid vacations.

Under the Employment Rights Act 1996, National Minimum Wage Act 1998, National Minimum Wage Regulations 2015, and the Working Time Regulations 1998, Bolt’s drivers were considered by the Courts to be ‘exclusive’ employees unless they also drove for other ride-hailing apps or were part of the ‘Link’ scheme.  Bolt’s contention of self-employment was refuted based on its contractual control over their livelihoods and the absence of any valid notion of ‘free agency’. The Courts gave Bolt a scathing rebuke for the fictional nature of its contract that sought to deny any employer-worker relationship with the drivers.

Once again, the attempt to cut costs and responsibilities by creating sham contracts inferring that long-term employees are part-time freelancers has backfired. This ruling reaffirms that such sham contracts are no longer acceptable in the UK and that any employers operating under this attempted abrogation of responsibilities will find themselves on thin ice at tribunals. If you are currently employing any staff on zero-hours contracts or on an extended contractual freelance basis, you are advised to seek legal advice.

The new Employment Rights Bill will end zero-hour contracts and the ease of ‘fire and rehire’, establishing rights to bereavement, paternity and parental leave from the first day of employment, and abolishing the two-year qualifying period for protections from unfair dismissal. However, the issue of any probationary period remains in the air. The bill will introduce 28 individual employment reforms, including strengthening statutory sick pay, removing the lower earnings limit for all workers and cutting out the waiting period before sick pay entitlement comes into effect.

Employers will have to make their workplace more compatible with people’s lives, establishing a default in terms of flexible working, where practical. Larger employers must establish action plans to address gender pay gaps and support employees through menopause, while protections against unfair dismissal for pregnant women and new mothers will be augmented.  This will be enforced by a newly instituted Fair Work Agency which will also be open to guide employers through this major transition.

Although only just past its second reading, the bill is likely to come into force in the Autumn of 2026, enabling employers to overhaul their HR policies and practices, train their management, and implement these sweeping reforms which cover all aspects of the working environment from harassment, the right not to be contacted outside of hours, to equality.

Legislation has been introduced in Parliament to upgrade UK workers’ rights.

The legislation is wide ranging with the intention of tackling poor working conditions and benefitting businesses. A summary of the main changes are:

• The existing two-year qualifying period for protections from unfair dismissal will be removed, delivering on the Labour manifesto commitment to ensure that all workers have a right to these protections from day one on the job.
• The government will also consult on a new statutory probation period for companies’ new hires. This will allow for a proper assessment of an employee’s suitability to a role as well as reassuring employees that they have rights from day one, enabling businesses to take chances on hires while giving more people confidence to re-enter the job market or change careers, improving their living standards.
• The bill will bring forward 28 individual employment reforms, from ending exploitative zero hours contracts and fire and rehire practices to establishing day one rights for paternity, parental and bereavement leave for millions of workers. Statutory sick pay will also be strengthened, removing the lower earnings limit for all workers and cutting out the waiting period before sick pay kicks in.
• Accompanying this will be measures to help make the workplace more compatible with people’s lives, with flexible working made the default where practical. Large employers will also be required to create action plans on addressing gender pay gaps and supporting employees through the menopause, and protections against dismissal will be strengthened for pregnant women and new mothers. This is all with the intention of keeping people in work for longer, reducing recruitment costs for employers by increasing staff retention and helping the economy grow.

A new Fair Work Agency bringing together existing enforcement bodies will also be established to enforce rights such as holiday pay and support employers looking for guidance on how to comply with the law.

Employers and employees who would like more information on the scope of the new legislation can view a Department for Business and Trade press release at https://www.gov.uk/government/news/government-unveils-most-significant-reforms-to-employment-rights.

New regulations that prohibit employers from withholding tips for employees in the hospitality, leisure, and services sectors took effect on 1 October 2024. This change follows the enactment of The Employment (Allocation of Tips) Act 2023, commonly referred to as the Tipping Act, along with the statutory Code of Practice on the fair and transparent distribution of tips, which also took effect on 1 October 2024.

This means that more than 2 million workers will have their tips protected. HMRC has estimated that this new law will mean an estimated £200 million a year will go back into the pockets of hard-working staff by retaining tips that would have otherwise been deducted. These new measures apply in England, Scotland and Wales. Employment policy is devolved to Northern Ireland.

Employers who violate these rules could face fines or be required to compensate their staff. Workers will have the ability to hold their employers fully accountable through employment tribunals.

The statutory Code of Practice provides businesses with advice on how tips should be distributed among staff. The Code of Practice is statutory and has legal effect, meaning it can be introduced as evidence in an employment tribunal.

British workers are set for better working conditions as the Government takes its first steps towards its Plan to Make Work Pay.

The Deputy Prime Minister and Business Secretary convened a meeting with trade unions and business leaders in a first-of-its-kind meeting 14th August 2024.

They agreed to wipe the slate clean and begin a new relationship of respect and collaboration to help deliver the Government’s first mission – to kickstart economic growth.

They discussed views on the Employment Rights Bill and wider Plan to Make Work Pay, with the Deputy Prime Minister and Business Secretary.

This comes soon after the Deputy Prime Minster and Business Secretary decided to overhaul the remit of the Low Pay Commission to deliver early progress on the Make Work Pay plan and put more money in working people’s pockets.

The Employment Rights Bill – which will play a key role in delivering the Plan to Make Work Pay – will be introduced within 100 days of entering Government.

As part of its Make Work Pay plan, the Government has committed to:

• Ban exploitative zero hours contracts
• End fire and rehire
• Introduce basic rights from day one to parental leave, sick pay, and protection from unfair dismissal
• Strengthen the collective voice of workers, including through their trade unions, and create a Single Enforcement Body to ensure employment rights are upheld
• Make sure the minimum wage is a genuine living wage by changing the remit of the independent Low Pay Commission so for the first time it accounts for the cost of living
• Remove the discriminatory age bands, so all adults are entitled to the same minimum wage, delivering a pay rise to hundreds of thousands of workers across the UK

When a new employee is added to the payroll it is the employer's responsibility to ensure they meet the employee's rights and deduct the correct amount of tax from their salary.

HMRC’s guidance lists the following requirements that an employer must meet for employees on full-time and part-time contracts:

• a written statement of employment or contract;
• the statutory minimum level of paid holiday;
• a payslip showing all deductions, such as National Insurance contributions (NICs);
• the statutory minimum length of rest breaks;
• Statutory Sick Pay (SSP); and
• maternity, paternity and adoption pay and leave.

Employers must also:

• make sure employees do not work longer than the maximum allowed;
• pay employees at least the minimum wage;
• have employer’s liability insurance;
• provide a safe and secure working environment;
• register with HM Revenue and Customs to deal with payroll, tax and NICs;
• consider flexible working requests;
• avoid discrimination in the workplace; and
• make reasonable adjustments to their business premises if an employee is disabled.

Three new pieces of legislation that received cross party support were granted Royal Assent on 24 May 2023. 

1. The Neonatal Care (Leave and Pay) Act 2023: This new Act will allow for up to 12 weeks of paid neonatal care leave. This will be made available to employed parents if their new-born is admitted to neonatal care so they can spend more time with their child. These parents will continue to be entitled to normal maternity, paternity, and/or shared parental leave.
2. Protection from Redundancy (Pregnancy and Family Leave) Act 2023: This Act will extend existing redundancy protections. This will allow for existing protections whilst on Maternity Leave, Adoption Leave or Shared Parental Leave to be extended to cover pregnancy and a period of time after a new parent has returned to work.
3. The Carer’s Leave Act 2023: This Act will introduce a new entitlement of one week of flexible unpaid leave per year for employees who are caring for a dependant with a long-term care need.

The implementation dates of these new employment rights have not yet been announced as the government will need to lay down secondary legislation in due course to implement these new entitlements. This is likely to occur at some time after April 2024.

Employers must ensure they are paying staff at least the National Minimum Wage (NMW) or National Living Wage (NLW). The NMW and the NLW are the minimum legal amounts that employers must pay their workers.

The new NMW and NLW rates came into effect on 1 April 2023. The hourly rate for the NMW (for 21-22-year-olds) is £10.18 and for the NLW is £10.42. The NLW is the minimum hourly rate that must be paid to those aged 23 or over.

It is important that employers ensure they pay the necessary minimum wage rates as there are significant penalties for employers who are found to have paid workers less that they are entitled to by law. If an employee has been underpaid, the employer must pay any arrears without delay. There are penalties for non-payment of up to 200% of the amount owed. The penalties are reduced by 50% if all of the unpaid wages and 50% of the penalty are paid in full within 14 days.

The maximum fine for non-payment can be up to £20,000 per employee. Employers who fail to pay, face a 15-year ban from being a company director as well as being publicly named and shamed.

There are fines for not registering as a childminder if you were required to do so.

GOV.UK guidance on the matter states that you must register as a childminder if all of the following apply:

• the children are under the age of 8;
• you look after them for more than 2 hours a day;
• you look after them in your own home; and
• you get paid to look after them – including payment in kind.

A registration can be made with Ofsted or through a childminder agency.

In order to register, the childminder will need:

• an enhanced check with barred lists for home-based workers from the Disclosure and Barring Service (DBS);
• first aid training for the age group they will look after;
• childcare training;
• a health declaration booklet;
• contact details for 2 references; and
• a certificate of good character from an embassy – if they lived abroad in the past 5 years.

A person does not need to register (although can choose to do so in certain situations) if they are working as a:

• a nanny
• a tutor
• a babysitter and if they look after the children between 6pm and 2am
• a family friend and they look after the children less than 3 hours a day.

There are different rules for someone who provides day-care outside someone’s home – for example, a nursery or creche.

If you have staff that have been called up to serve on a jury, then you must allow them the necessary time off. You can ask them to request to delay their jury service if their absence would seriously harm your business. Your employee would need to agree to this request and would need to provide written evidence explaining why a delay has been requested. The request to delay jury service can only be made once in a 12-month period, and the employee must say on the jury summons when they will be available.

Whilst employers must provide time off to allow for jury service, there is no legal requirement to pay employees whilst they are serving.

However, the employee can continue to be paid as normal. If this is the case, the employer cannot reclaim money paid to the employee or that the business has lost during the jury service.

If an employer does not pay their employee, then they can claim a loss of earnings allowance from the court. The employer will need to prepare a certificate of loss of earnings for their employee. This form comes together with the jury service letter. 

Employers can also decide to top up the ‘loss of earnings allowance’ by subtracting the court allowance from their employee’s usual take-home pay.

According to proposals set out in a government policy paper, the revised rates for statutory maternity pay (SMP), statutory adoption pay (SAP), statutory paternity pay (SPP), statutory shared parental pay (ShPP), statutory parental bereavement pay (SPBP) and statutory sick pay (SSP) for tax year 2022/23 are to be as follows:

• the standard weekly rates of SMP, SAP, SPP, ShPP and SPBP will increase from £151.97 to £156.66 (or 90% of the employee’s weekly earnings if that amount is lower than the statutory rate) – it is assumed this will be for payment weeks commencing on or after Sunday, 3 April 2022
• the prescribed weekly rate of maternity allowance (MA) will increase from £151.97 to £156.66 (or 90% of the individual’s weekly earnings if that amount is lower than the statutory rate)
• the weekly rate of SSP will increase from £96.35 to £99.35 from 6 April 2022.

In addition, the amount of the earnings threshold, below which employees do not qualify for SMP, SAP, SPP, ShPP, SPBP and SSP, is to rise from £120 to £123 per week.

The government has published its response to its consultation on making COVID-19 vaccination a condition of deployment for frontline workers in health and social care settings in England and has confirmed that it will now bring forward regulations to implement a mandatory COVID-19 vaccination requirement. The regulations will cover all those who have direct, face-to-face contact with service users, including doctors, nurses, dentists, domiciliary care workers, porters, receptionists, cleaners, volunteers, agency workers and trainees (unless they are exempt). The requirement will apply across the Care Quality Commission (CQC) regulated health and social care sector, whether they are publicly or privately funded.

This means health and social care workers will need to have received a full course of COVID-19 vaccination in order to continue to be deployed. Some individuals will be exempt from the regulations:

• those under the age of 18
• those who are clinically exempt from COVID-19 vaccination
• those who have taken part or are currently taking part in a clinical trial for a COVID-19 vaccine
• those who do not have direct, face to face contact with a service user, for example, those providing care remotely, such as through triage or telephone consultations, or managerial staff working in sites apart from patient areas
• those providing care as part of a shared lives agreement.

The requirement will come into force in the spring, subject to the passage of the regulations through Parliament. There will be a 12-week grace period between the regulations being made and coming into force to allow those who have not yet been vaccinated to have both doses. Enforcement would begin from 1 April 2022, subject to Parliamentary approval.

The requirement will only cover COVID-19 vaccinations, not flu vaccinations.