Category: Employment Law

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.

The Check Employment Status for Tax (CEST) tool can be used to help ascertain if a worker should be classified as employed or self-employed for tax purposes in both the private and public sector.

The service provides HMRC’s view if IR35 legislation applies to a particular engagement and whether a worker should pay tax through PAYE. The service also helps determine if the off-payroll working in the public sector rules apply to a public sector engagement.

The software can be used to check the employment status of:

• a worker providing services,
• a person or organisation hiring a worker; or
• an agency placing a worker.

HMRC has said that it will stand by the result given unless a compliance check finds the information provided was not accurate. HMRC will not stand by the results of contrived arrangements and those designed to get a particular outcome from the service. HMRC are clear that this would be treated as evidence of deliberate non-compliance and could result in higher penalties.

The service is anonymous, and the results are not stored online. However, the results can be printed and held for your own records. If any changes take place to the workers role their status should be reassessed.

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.

As part of the Autumn Budget and Spending Review 2021, the government has confirmed that it will continue to meet 95% of the apprenticeship training costs for employers who do not pay the Apprenticeship Levy and it will deliver several apprenticeship system improvements for all employers. These include:

• an enhanced recruitment service by May 2022 for small and medium-sized enterprises (SMEs), helping them hire new apprentices 
• supporting flexible apprenticeship training models to ensure that apprenticeship training continues to meet the needs of employers. By April 2022, the government will consider changes to the provider payment profiles aimed at giving employers more choice over how the apprenticeship training is delivered, and explore the streamlining of existing additional employer support payments so that they go directly to employers
• introducing a return-on-investment tool in October 2022 to ensure employers can see the benefits apprentices create in their business.

The government has also confirmed the extension of the £3,000 apprentice hiring incentive payment for employers until 31 January 2022.

The government has published its response to its 2016 consultation on tipping, gratuities, cover and service charges and has confirmed its intention to bring forward legislative measures to ensure tips, gratuities and service charges go to workers in full. The legislative measures will include:

• requirements for employers in all sectors to not make any deductions from tips received by their staff, including admin charges, other than those required by tax law
• requirements for employers to distribute tips in a way that is fair and transparent, with a written policy on tips, and a record of how tips have been dealt with. Employers will be able to distribute tips via a tronc, and a tip must be dealt with by no later than the end of the month following the month in which it was paid by the customer
• provisions to allow workers to make a request for information relating to an employer’s tipping record. Employers will have flexibility in how to design and communicate a tipping record, but they should respond within four weeks
• requirements for employers to have regard to a new statutory Code of Practice on Tipping which will support the legislation.

Where employers fail to comply with the new measures, workers will be able to bring employment tribunal claims.

The provisions will be included in the upcoming Employment Bill which will be brought forward when parliamentary time allows.