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    Employment law guide

    Spring to Autumn 2022


    Advice

    This guide contains general information on employment rights and entitlements that apply to the vast majority of employees in the UK. However, certain categories of workers do have different entitlements which apply because of the work they do, or the sector they are employed in, for example, public sector employees, teachers, agricultural workers or night workers.


    Contents

     

    Pay and benefits

    Family

    From 3 Apr 2022

    Statutory maternity pay for the first 6 weeks 90% of employee’s normal weekly earnings
    Statutory maternity (after 6 weeks), paternity and adoption pay* (including maternity allowance) £156.66 (per week) or 90% of the employee’s normal weekly earnings (whichever is lower)
    Statutory Shared Parental Pay £156.66 (per week) or 90% of the employee’s normal weekly earnings (whichever is lower)

    Sickness

    From 6 Apr 2022

    Statutory sick pay £99.35 (per week)

    National minimum hourly wage

    From 1 Apr 2022

    21 to 22 years of age £9.18 an hour
    18 to 20 years of age £6.83 an hour
    16 to 17 years of age £4.81 an hour
    Apprentices (if under 19 years of age, or aged 19 and over who are in the first year of their apprenticeship) £4.81 an hour

    National Living Wage

    From 1 Apr 2022

    Workers aged 23 and over are entitled to receive the National Living Wage £9.50 an hour

    Flexible working

    From 6 Apr 2022

    Failure to properly deal with a flexible working request £4,568 (max)
    Guarantee payments - maximum per day £31
    Guarantee payments - maximum in 3 months £155

    A week’s pay

    From 6 Apr 2022

    Limit on a week’s pay (for any award) £571
     

    Notes

    *Small employers whose class 1 National Insurance Contributions (NIC) are below £45,000 per annum, in a qualifying tax year, are entitled to recover: 100% of any statutory maternity, paternity or adoption payments; and an additional amount of 3% based on the NICs they pay on the above payments.

    Limitation periods

    For most claims, including unfair dismissal and discrimination, an employee must bring an employment tribunal claim within 3 months minus 1 day from the effective date of termination (EDT), or the last discriminatory act.

    • Generally, the EDT is the date when an employee ceases work.
    • In most cases, equal pay claims may be brought 6 months after employment ends.
    • Claims for breach of contract taken in a County or the High Court (not an employment tribunal) may be brought 6 years after the breach.

    ACAS Early Conciliation

    ACAS Early Conciliation is a mandatory process in respect of most claims presented to the Tribunal. If ACAS Early Conciliation applies, the time limit to present the claim may be extended to take account of the ACAS Early Conciliation period.

    Qualifying periods

    In all cases, employment must be continuous.

    Unfair dismissal: 2 years*
    Breach of contract: None
    Discrimination None
    Redundancy pay: 2 years
    Agency workers: 12 weeks
    Whistleblowing: None
     

    *There are some cases of unfair dismissal where a 2 year qualifying period is not required, e.g. dismissals for health and safety reasons, connected with pregnancy, childbirth, maternity or paternity leave or dependent care leave, and performing functions as an employee representative. This list is not exhaustive.

    Agency workers

    Agency workers have the right to the same pay and other “basic working conditions” as equivalent permanent staff after a 12-week qualifying period. In addition, they must be provided with access to collective facilities and to information about employment vacancies from the first day of their assignment.

    Agency workers are also entitled to receive a key information document before agreeing the terms by which the agency worker will undertake work.

    Flexible working

    Any employee (with at least 26 weeks’ continuous employment) can make a request for flexible working. A flexible working request may relate to several types of changes including working hours, working times and/or place of work.

    Only one request can be made in any 12 month period.

    Employed or self-employed

    The table below sets out the basic criteria which can typically apply in considering whether an individual is an employee or self-employed.

    Criteria

    Employed

    Self-employed

    Mutual obligations: Is there an obligation to provide regular work and is the individual under an obligation to make themselves available to do the work? Yes No
    Control: Does the individual have the ability to determine when and how they work? No Yes
    Insurance: Does the individual provide their own insurance? No Yes
    Personal service: Is the individual required to carry out the services personally? Yes No
    Do they have a right to appoint a substitute? No Yes
    Financial risk: Does the individual assume any financial risk for the work they do? No Yes
    Taxation: Does the individual charge VAT? No Yes
    Does the company deduct Income Tax and NI? Yes No
    Facilities and equipment: Does the individual provide their own equipment and materials to perform their work? No Yes
     

    Statement of particulars

    From 6 April 2020, those employees starting work have a right to receive a written statement of employment particulars on or before the first day of employment. Specific information must be given in the statement, including notice period, sick pay entitlement, probation period, normal working hours, any training to be provided, other rights to leave and all pay and benefits. Agency workers also have the right to receive a written statement of terms on or before the first day of their engagement.

    Holidays

    Full-time employees are entitled to receive 28 days of paid annual leave in any leave year. 28 days includes public holidays. Part-time employees are entitled to receive 28 days’ paid leave on a pro-rata basis dependent on the amount of time they work compared to a full-time employee.

    Payment in lieu of accrued annual leave must only be made where employment ends.

    Employees may not carry over paid annual leave from one leave year to the next leave year unless:

    1. their employer consents;
    2. they are unable to take annual leave because of certain leave entitlements, particularly maternity or sickness.
     

    Rest

    A worker must receive:

    • 11 hours uninterrupted rest per day;
    • 24 hours uninterrupted rest per week (or 48 hours uninterrupted rest per fortnight); and
    • a rest break of 20 minutes when working more than six hours per day.

    Collective redundancy

    Redundancy occurs where the requirements of the business for employees to carry out work of a particular kind cease or diminish.

    The duty to inform and consult: arises where there is a proposal to make 20 or more employees redundant at one establishment, within a period of 90 days or less. Employers must inform and consult appropriate representatives of the affected employees and notify the Secretary of State of the proposed collective redundancies. Failure to notify the Secretary of State is a criminal offence.

    Timings: Where 100 or more redundancies are proposed, consultation must begin at least 45 days before the first dismissal takes effect. For less than 100 redundancies, the minimum consultation period is 30 days.

    Working hours

    Each worker’s average working time (including overtime and time working for others) must not exceed 48 hours per week (normally calculated over a 17 week reference period), unless they have signed a letter opting-out of the maximum working week.

    UK GDPR and Data Protection Act 2018 (DPA 2018)

    The UK GDPR and DPA 2018 together create a regime which governs the collection, holding and using of information relating to data subjects, such as job applicants, employees, workers and contractors.

    The UK GDPR sets out several principles which employers, as Data Controllers, must comply with when processing information concerning their staff. These principles cover lawfulness, fairness and transparency, purpose limitation, data minimisation, accuracy, storage limitation, integrity and confidentiality and accountability.

    Data subjects have the right to request access to information that organisations hold about them, as well as correct and erase data and the right to request restriction and objection to data processing.

    Compensation

    Claims

    From 6 Apr 2022

    Unfair dismissal - compensatory damages £93,878 or 52 weeks gross pay, whichever is lower
    Unfair dismissal - basic award £17,130
    Unfair dismissal - other damages* £6,959 (min)
    Failure to inform and consult - TUPE 13 weeks’ gross pay
    Failure to inform and consult - collective redundancy 90 days’ gross pay
    Breach of contract claim £25,000
    Statutory redundancy pay £17,130
    Failure to allow employee to be accompanied to disciplinary/ grievance hearing £1,142
    Failure to provide written statement of particulars £2,284
    Discrimination No upper limit
     

    Notes

    1. Except where stated, all amounts are maximum awards in an employment tribunal.
    2. *Where dismissal is because of trade union membership or activities, or acting as an employee representative or health and safety representative.
     

    Equality & diversity

    It is unlawful to discriminate against an employee on the basis of the following nine characteristics:

    1. age;
    2. disability;
    3. race;
    4. sex;
    5. gender reassignment;
    6. marriage and civil partnership;
    7. pregnancy and maternity;
    8. religion or belief; and
    9. sexual orientation.
     

    Discrimination may occur intentionally or unintentionally as follows:

    • Direct discrimination: where someone is treated less favourably because of a protected characteristic.
    • Indirect discrimination: where someone is disadvantaged by a provision, criterion or practice that applies to all staff, but also has the effect of putting people with a protected characteristic at a particular disadvantage. Indirect discrimination may be justified if it is a proportionate means of achieving a legitimate aim.

    It is also unlawful for an employee to be harassed or bullied because of a protected characteristic. Employees may not be victimised for raising a complaint of discrimination.

    Employers also have additional obligations towards disabled employees and workers; including the obligation to make reasonable adjustments and not to treat them unfavourably because of something arising out of their disability.

    Parental Bereavement Leave & Pay

    All employed parents, regardless of their length of service, are entitled to take up to two weeks statutory parental bereavement leave if they lose a child under 18, or suffer a stillbirth after 24 weeks pregnancy.

    Parents with 26 weeks or more service and average earnings of £123 (in the 2022/2023 tax year) or more, will also be entitled to receive statutory parental bereavement pay of £156.66 or 90% of average weekly earnings if lower.

    Seminars and in-house training

    Our team provides practical training for businesses and charities throughout the South West. We also provide in-house employment law workshops which are tailored to individual businesses or sectors.

    If you wish to receive invitations to forthcoming seminars and workshops, or would like to speak to us about us providing bespoke training for your business, please contact employment@porterdodson.co.uk

    Sarah-Young

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