This latest bulletin continues with some Covid -19 topics, including the new living with covid guidance and the closure of the statutory sick pay rebate scheme.  It also talks about the recent Court of appeal ruling regarding agency workers and a recent  case about the removal of confidential documents.

Changes in Domestic Law surrounding COVID-19

You’ll no doubt have seen in the new that Boris Johnson has advised of the UK “Strategy  for living with COVID.” His four point plan moves away from government restrictions and focuses on personal responsibility in managing Coronavirus.

  • Removing domestic restrictions while encouraging safer behaviours
  • Protecting the vulnerable
  • Maintaining resilience against future variants,
  • Securing innovations and opportunities from the COVID-19 response
 What does this mean for an employer?
  • From 24th February, the legal requirement to self-isolate following a positive test ended. Close contacts who are not fully vaccinated also no longer need to self-isolate.
  • From 24th February, workers will are no longer legally obliged to tell their employers when they are required to self-isolate.
  • From 24th March, the COVID-19 provisions within Statutory Sick Pay and Employment and Support Allowance regulations will end (see further below). People with COVID-19 may still be eligible, subject to the normal conditions of entitlement.
  • From 1st April the government will no longer encourage those with COVID to stay home, but to exercise personal responsibility.
  • Free symptomatic and asymptomatic testing will end for the general public from 1st April. Free symptomatic tests will still be made available for the elderly and most vulnerable.

Closure of Statutory Sick Pay Rebate Scheme

Following on from my last bulletin about the reopening of this scheme allowing small to medium employers to reclaim up to 2 weeks Covid related SSP per employee, it has now been notified that this will finish.
This means that from employers will no longer be able to claim back Statutory Sick Pay for their employees’ coronavirus-related absences or self-isolation that occur after ‌17‌‌‌ ‌March‌‌‌ ‌2022.

Any new claims will need to be finalised and submitted by 24th March 2022 for absence periods up to the 17th March
After then, there is a return to the normal SSP rules, which means employers should revert to paying SSP from the fourth qualifying day their employee is off work regardless of the reason for their sickness absence.


Reminder of the increase of National Minimum Wage rates.

By way of reminder, from 1 April 2022 the National Minimum Wage and National Living Wage will increase as follows:

  • £8.91 to £9.50 for workers aged 23 and over (the national living wage)
  • £8.36 to £9.18 for workers aged 21 or 22
  • £6.56 to £6.83 for workers aged 18 to 20
  • £4.62 to £4.81 for workers aged under 18 who are no longer of compulsory school age, and
  • £4.30 to £4.81 for apprentices under 19, or over 19 and in the first year of the apprenticeship.


Annual Increase in Compensation Limits and statutory pay rates

Further changes applicable from April 2022, include those made Under The Employment Rights (Increase of Limits) Order 2022-
This year’s compensation limit increases are:
  • a week’s pay (basic award / redundancy payment) – £571 (from £544)
  • maximum compensatory award – £93,878 (from £89,493) subject to the cap of a maximum of 12 month’s gross salary.
The new limits will apply to dismissals occurring on or after 6th April 2022.

The rate of statutory Maternity, Adoption, Paternity, Shared Parental and Parental Bereavement Pay will increase to £156.66, up from £151.97. The increase normally takes effect on the first Sunday in April, which in 2022 is 3 April.
The rate for Statutory Sick Pay will also rise on 6 April 2022. The new rate will be £99.35, up from £96.35.


Removal of Confidential Documents for Legal Advice

In an interesting case of Nissan v Passi, the High Court ruled that a whistleblower is not entitled to remove confidential legal documents for the purpose of taking legal advice

Mr Passi had taken, and refused to return/delete, over 100 sensitive and confidential documents belonging to his ex-employer. He said he had taken them for the purpose of seeking legal advice, and wanted to retain them because he lacked confidence that his ex-employer would disclose them in his pending whistleblowing litigation.

The High Court held that an interim injunction should be granted for return and deletion of those documents. The ex-employee had no proprietary interest in the documents, whereas the ex-employer did. There was no justification for allowing the ex-employee to ‘pre-empt’ what might happen during disclosure on the assumption the employer would not comply with its obligations.

A copy of the case is available here 


Agency Workers

The recent case of Kocur v Angard Staffing Solution LTD is useful for all those employers who use agency workers. The Court of Appeal confirmed that agency workers do not have the right to apply for a directly employed vacancy with the hirer- under the Agency Workers regulations 2010.
The Claimant was employed by Angard and supplied to Royal Mail Group Ltd as an “Operational Post Grade” (‘OPG’). Angard is a wholly owned subsidiary of Royal Mail and only supplies its workers to Royal Mail. When Royal Mail had vacancies at OPG level, direct employees who were already in different permanent roles, or were in other less secure (but directly employed) roles, were allowed to apply before agency workers.

It was argued that the right under the Agency Workers Regulations 2010 to be notified of any vacancies at the hirer, included by implication the right to apply for those jobs. Rejecting that argument, Lord Justice Green said:

“, there is no hint of [a right to apply for vacancies]…ever having crossed the minds of the [EU] Commission, the Council or Parliament…[T]he appellant’s argument assumes that when the Directive was adopted (in 2008) temporary workers and permanent workers were treated as comparable in every respect. However, as already observed…the Directive recognises that temporary workers are not, in all respects, comparable with permanent workers…”