Employment Law Update – January 2022

Update to right to work checks for biometric card holders from 6 April 2022

Changes to right to work checks were introduced on 1^st July 2021 following the launch of the UK’s new immigration system, post Brexit. It has recently been announced that further changes to right to work checks will be brought in from 6^th April 2022 for employees who hold a biometric residence permit, biometric residence card or frontier permit.

Currently, for employees holding any of the above documentation you have the option to carry out either a manual or an online right to work check. Before 6^th April you should not discriminate against employees who do not wish to use the online service.

From 6^th April 2022, you will no longer have the option to carry out a manual check and you must instead carry out an online check. If the employee in question is unwilling to use the online service, they will be unable to prove their immigration status and you will not be able to lawfully employ them.

If you have made a manual check before this date, an additional retrospective online check is not required after 6^th April unless the employee’s leave to remain expires, in which case a repeat right to work check should be carried out as normal. If a retrospective online check is carried out and it is discovered that the employee does not have the right to work, the employee will have been working illegally and should be dealt with appropriately.

Note that for prospective employees who do not hold any of those 3 types of documentation the current rules will remain the same.

Comment

Thorough right to work checks are vital to ensure that your employees have leave to remain in the UK and are not working illegally. To avoid fines for illegal working it is important to keep up to date with any changes to requirements.

We will be happy to help or advise on the changes highlighted in this article, or on right to work checks in general. Additionally, we have a specific training session available which we are happy to deliver in-house or by video link for any of your staff who have responsibilities for onboarding new employees.

Is it fair to dismiss an employee for raising multiple frivolous grievances?

Employers often receive grievances from employees, and employees must not suffer detriment as a result, but what can you do when an employee raises numerous frivolous grievances?

A recent case, Hope (H) v British Medical Association (BMA), explored this and helped to provide employers with some clarity on their position in this situation.

Facts & Decision

H was employed by BMA in the role of a senior policy adviser. During his time at the company, H raised several grievances. The grievances were mainly against senior managers and some concerned their alleged failure to include H in meetings he believed he should have attended.

H wanted to discuss his grievances informally with his line manager (M), however, more senior managers were required to make a decision.

H did not wish to raise a formal grievance but refused to withdraw the grievances.  A formal grievance meeting was arranged which H refused to attend, despite his attendance being a reasonable management request. The meeting continued in H’s absence and his grievances were not upheld.

BMA took disciplinary action against H and dismissed him for gross misconduct, namely,  bringing multiple vexatious and frivolous grievances and refusing to comply with reasonable management instructions. H brought a claim of unfair dismissal against BMA.

The Employment Tribunal (ET) held that H’s dismissal was fair as BMA had acted reasonably in dismissing H on the basis of his conduct being vexatious and unreasonable. H then appealed to the Employment Appeal Tribunal (EAT) stating his conduct did not constitute gross misconduct in accordance with his contract of employment.

The EAT dismissed H’s appeal. They held that the ET were entitled to find that BMA had acted reasonably in treating H’s conduct as being a sufficient reason to dismiss in all the circumstances, thus meeting the test of reasonableness under the Employment Rights Act 1996.

Comment

Employers may be entitled to dismiss employees who raise numerous frivolous and vexatious grievances by reason of misconduct. You should, however, be extremely careful when doing so to ensure a fair procedure is followed and dismissal is reasonable in all the circumstances. Failure to do so could result in both unfair dismissal and victimisation claims.

Coronavirus Statutory Sick Pay Rebate Scheme returns

The Coronavirus Statutory Sick Pay Rebate Scheme was originally introduced in 2020 to help employers cope with COVID related staff absences. It allowed small and medium size businesses to claim back up to two weeks’ SSP for staff who were absent due to Coronavirus.

On 21 December 2021, Chancellor Rishi Sunak announced that the scheme would be reintroduced with immediate effect to allow eligible businesses to apply for a rebate of Coronavirus related SSP. It is hoped that the reintroduction of the scheme will help to alleviate the pressure of high levels of absence caused by the Omicron variant. Eligible businesses can now begin to claim their rebate.

Who can apply and what can they claim?

The Government published its full guidance on the returning scheme on 19 January 2022. It is similar to the original scheme which ran throughout 2020.

The scheme applies to small and medium business with under 250 employees. Only employers with fewer than 250 employees across all PAYE payroll schemes on 30 November 2021 will be eligible. Eligible employers are now able to apply to HMRC for a rebate of up to 2 weeks’ SSP per employee in the following circumstances:

1. They have already paid the employee SSP;
2. The employee’s period of incapacity for work began on or after 21^st December 2021; and
3. The employee’s period of incapacity for work was related to coronavirus.

An absence will be ‘related to Coronavirus’ where an employee was required to isolate and unable to work because:

• They had Coronavirus symptoms/had Coronavirus;
• Someone they live with had symptoms/had Coronavirus;
• They had been advised to isolate by the NHS or a public health body as they were a close contact of someone who had tested positive for Coronavirus;
• They had been advised by letter to shield due to very high risk of severe illness from COVID-19; or
• They had been advised by the NHS to isolate for up to 14 days before surgery.

Comment

The reintroduction of the rebate scheme is intended to help small and medium businesses hit by Coronavirus related absences which peaked at the end of 2021. Eligible businesses are encouraged to make use of the scheme.

If you require any further information on the above developments or any other HR or employment law issue, then please contact one of our employment law experts below.