Top 5 recent workplace developments – April 2022

This is our selection of recent developments which we think will impact on HR practice.

1. COVID-19: New public health guidance

The government has published new guidance for employers on COVID-19.

The ‘Working Safely during coronavirus’ guidance has now been replaced with new guidance published by the Health Security Agency for England on 1 April 2022. New guidance for ‘People with symptoms of a respiratory infection including COVID-19’ and on ‘Living safely with respiratory infections, including COVID-19’ and was also published on 1 April 2022. There is separate guidance for Scotland, Wales and Northern Ireland. Universal free testing for all has also now ended.

Employers continue to have a legal duty to provide a safe place of work and manage risks to those affected by their business. While the requirement for every employer to explicitly consider COVID-19 in their health and safety risk assessment has been removed, employers may choose to continue to cover COVID-19 in their risk assessments in any event. The guidance for employers continues to stress the importance of good ventilation and maintaining a clean workplace, and encouraging and enabling employees to get vaccinated.

People who test positive for COVID-19 or have symptoms of a respiratory infection such as COVID-19 are advised to try to work from home if they can. Employers, in accordance with their legal obligations, are encouraged to consider how best to support and enable their workforce to follow this guidance as far as possible.

Employers should continue to consider the needs of those who are at greater risk of serious illness from COVID-19, such as those with compromised immune systems. There is specific guidance for people whose immune system means that they are at higher risk, because they have a reduced ability to fight infections, such as COVID-19.

Practical point

The responsibility is now more on individuals and businesses to put in place measures that they think are appropriate given their particular circumstances and health and safety risks - guided by the guidance mentioned above. Taking an approach that goes against the guidance could put employers at risk of claims and other employee issues.

Employers should decide what measures are appropriate to take in their workplace following these changes. They should also communicate with employees about what steps are being taken and any expectations of employees going forwards.

There are some tricky issues for employers to grapple with as we move to the next phase of ‘Living with COVID-19'. For more information or advice, please contact Robert Hill or your usual contact at Clyde & Co.

2. COVID-19: Data protection - new guidance

The Information Commissioner's Office (ICO) has published new guidance to help employers comply with their data protection obligations, including in relation to vaccination information, following the government's relaxation of the COVID-19 rules from 1 April 2022.

The guidance provides a brief overview of the relevant issues now that the COVID-19 rules have been relaxed. The ICO’s recommendations for employers include:

• Practices put in place during the pandemic: Reviewing these to assess whether, in light of the latest government guidance, the personal data they collect is still necessary – and that it is still reasonable, fair and proportionate to the current circumstances.
• Any additional personal data collected and retained during the pandemic: Ensuring that it is securely disposed of if it is no longer required.
• Vaccination information: If you are continuing to collect vaccination information - and there must be a compelling reason to do so - be clear about what you are trying to achieve and how asking people for their vaccination status helps to achieve this. Use of this data must be fair, relevant and necessary for a specific purpose.
• Positive COVID-19 cases in the workforce: Although data protection law does not prevent employers from keeping staff informed about potential or confirmed COVID-19 cases among colleagues, ensure that the information provided is limited to no more than is necessary and that individuals are not named.

Practical point

Employers should check the government guidance published for England, Northern Ireland, Scotland and Wales before deciding what steps to take around the use of personal information now that the COVID-19 rules have changed.

Data protection is only one of a number of factors to consider in relation to vaccination information, and employers should also take into account: employment law and contracts with employees, health and safety requirements, and equalities and human rights (including privacy rights).

3. Ethnicity pay gap reporting

The government has published its response to the report of the Commission on Race and Ethnic Disparities, which made a number of recommendations to address ethnic and racial disparities and inequalities, confirming that mandatory ethnicity pay gap reporting will not be introduced.

The government’s response says that mandatory reporting may not be the most appropriate tool for every type of employer seeking to ensure fairness in the workplace, and that it wants to avoid imposing new reporting burdens on businesses as they recover from the pandemic.

However, there will be a process for voluntary ethnicity pay gap reporting - so those organisations that choose to publish ethnicity pay figures will be required to publish a diagnosis and action plan, setting out the reasons why any disparities exist and what will be done to address them. There will be support for employers carrying out voluntary pay reporting, with guidance due to be published in summer 2022.

Practical point

The hybrid solution of a voluntary reporting regime with certain requirements for organisations that choose to publish their ethnicity pay figures will mean that employers that do report will need to demonstrate their commitment to improving diversity by setting out tangible measures in an action plan, to show how the pay gap will be narrowed.

The Parker Review Committee has published a 2022 update report on the ethnic diversity of UK boards, outlining the results of its latest voluntary census on the ethnic diversity of FTSE 100 boards. Nearly all FTSE 100 companies have met the diversity target set in 2017, with at least one director from an ethnic minority background. That said, the vast majority of these were as non-executive directors rather than in key executive roles (CEO and CFO). 

In addition to its position on pay reporting, the government’s response confirms:

• its Office for Artificial Intelligence will develop a national position on governing and regulating AI, and will set this out in a white paper in 2022 - including how to address potential racial bias in algorithmic decision-making
• the Government Equalities Office will create new updated guidance on positive action by December 2022
• by spring 2023, its Equality Hub will create an "Inclusion at Work Panel" which will develop and disseminate effective resources to help employers drive fairness for all in the workplace

4. Equal pay audits

In an equal pay, sex discrimination and victimisation claim, a tribunal has awarded over £2 million in compensation and ordered the employer to carry out a salary audit.

Ms Macken brought claims for equal pay, direct sex discrimination, victimisation, protected disclosure detriment and harassment, and the tribunal found that BNPP had:

• paid her less than her male comparator on the grounds of sex
• directly discriminated against her on the grounds of sex, and
• victimised her after she raised concerns about unequal pay and sex discrimination.

In a recent remedy judgment, the tribunal awarded Ms Macken over £2m in compensation. 

BNPP was also ordered to complete an equal pay audit, and to:

• identify any differences in pay between men and women
• explain the reasons for any identified differences
• state the reasons for any potential breach of equal pay, and
• set out its plans to avoid further breaches

Practical point

This case is believed to be one of the first in which a tribunal has ordered an equal pay audit. Although BNPP sought to change their pay practices and corporate culture by instituting a remediation programme, given that the tribunal had found that issues suffered by Ms Macken were partly a result of BNPP’s opaque pay system, and the logical conclusion was that other women may have been affected, BNPP was ordered to complete an equal pay audit.

To reduce the risk of equal pay claims, in addition to carrying out equal pay audits on a regular basis, employers should ensure their pay practices are transparent, clearly setting out the criteria against which pay is assessed, and how pay progression takes place.

The Tribunal considered the discrimination to be of a sufficiently serious nature to make an award for injury to feelings at the middle of the upper Vento band. Vento bands for injury to feelings awards will increase for claims presented on or after 6 April 2022 – the new rates are:

• lower band: £990 to £9,900 for less serious cases
• middle band: £9,900 to £29,600 for cases that do not merit an award in the upper band
• upper band: £29,600 to £49,300 for the most serious cases - with the most exceptional cases capable of exceeding £49,300

Macken_vs_BNP_Paribas_SA_London_Branch

5. Increase in Tribunal compensation limits and employment rates

New compensation limits for tribunal awards and other statutory minimum payments will apply from 6 April 2022.

Unfair dismissal awards and redundancy pay:

• The limit on a week’s pay, for the purposes of calculating statutory redundancy and compensation for unfair dismissal, increases to £571 (from £544)
• The maximum compensatory award for unfair dismissal increases to £93,878 (from £89,493)
• The maximum statutory redundancy payment increases to £17,130 (from £16,320)
• The minimum basic award for certain unfair dismissals (including health and safety dismissals) increases to £6,959 (from £6,634)

In cases involving unfair dismissal, the new limits will apply where the effective date of termination falls on or after 6 April 2022. 

Other statutory rate increases:

• National minimum wage - hourly rate (for age 23+) increases to £9.50 (from £8.91)
• Statutory sick pay increases to £99.35 per week (from £96.35)
• Family leave pay increases to £155.66 per week (from £151.97) or 90% of the employee’s average earnings, whichever is lower

The Employment Rights (Increase of Limits) Order 2022

The Social Security Benefits Up-rating Order 2022