Employment law developments of 2022

As 2022 draws to a close we look back and summarise some of the key employment law developments of the past year.

Holiday pay calculations for casual workers

In July 2022 the Supreme Court finally handed down its judgement on the case of Harpur v Brazel, settling the question of how employers must calculate holiday pay for casual and part-year workers.

The Court held that the common method of calculating holiday entitlement as 12.07% of hours actually worked was incorrect and should no longer be used. This is because under the Working Time Regulations all workers are entitled to receive 5.6 weeks’ holiday regardless of hours actually worked.

To calculate holiday pay, employers must first calculate the workers’ average weekly pay in the 52 weeks immediately before the holiday period. However, employers must ignore any weeks in which the worker did not receive any pay, meaning they may have to count back further than the initial 52 weeks and go back as far as a maximum 104 weeks. This will give the employer the weekly pay the worker should receive if they were to take a week’s holiday at that time. The worker’s average weekly pay will need to be recalculated each time they take annual leave.

Employers who engage casual workers should review their contracts and processes to make sure they are calculating holiday pay and entitlement correctly.

New digital right to work checks

Employers must ensure their workers are able to lawfully work in the UK by carrying out right to work checks. Two significant changes to right to work checks were implemented in April of this year. First, for workers who hold a Biometric Residence Permit (BRP), Biometric Residence Card (BRC), or Frontier Worker Permit (FWP) right to work checks must now be completed online. The worker should provide the employer with a nine digit share code which the employer can then input into the Home Office’s online service to view the individual’s right to work details.

For workers with British or Irish passports, employers now have the option to outsource the right to work checks to an identification service provider (IDSP) who carry out the checks using identification document validation technology. A list of approved IDSPs is available on the Government website. Employers do not need to use an IDSP, and manual checks are still valid for workers with British and Irish passports.

Extension on the ban on exclusivity clauses

An exclusivity clause in an employment contract prevents or restricts the employee’s ability to work for an additional employer. Since 2015 these clauses have not been enforceable against employees on zero hour contracts. As of 5^th December of this year such clauses are also void against employees who are earning at or less than the lower earnings limit set by the Government each year. The lower earnings limit for the 2022/2023 tax year is £123 per week.

Additional bank holidays

This year two additional bank holidays were declared: one in June to honour Queen Elizabeth’s platinum jubilee and a second in September on the day of her funeral. Whether employers had to grant their workers the additional days’ leave depended on what was stated in their contracts. If for example, the contract contained wording that the employee was entitled to “all bank holidays,” the employee would have been entitled to take the additional bank holidays as paid leave. However, if the contract stated that the employee was entitled to “the usual” or “normal” bank holidays in England and Wales, or if it listed the specific bank holidays, the employer would have had discretion whether or not to grant the days as additional paid annual leave.

The issue of whether to grant additional annual leave will arise again in 2023 because there is an additional bank holiday scheduled for May 2023 for the coronation of King Charles III. Employers who were caught out this year may want to review and update the wording in their employment contracts.

Fit note changes

A couple of changes were made to the rules regarding fit notes, to make the process of obtaining a fit note simpler and easier. From April 2022 fit notes could be issued digitally, and there is no longer a requirement for the GP to personally sign it. The increase in the use of digital fit notes coincided with an increase in digital medical consultations during the pandemic.

From the 1^st July health professionals other than doctors have been permitted to issue fit notes. Issuing fit notes can now be provided by:

• Nurses
• Occupational therapists
• Pharmacists
• Physiotherapists.

It is important to stay up to date on the latest developments in employment law. Our Peace of Mind members are offered a yearly document audit to make sure their contracts and policies are up to date. To enquire about signing up to Peace of Mind, or if you have any other employment law query, contact our Employment Team today by calling 023 8071 7717 or email employment@warnergoodman.co.uk.