Employment Corner

In each edition of Check-In we will explore the latest developments in Employment law and their importance to the Hotel, Hospitality & Leisure sector. In this edition, we will look at:

• Right to work in the UK: The transition to digital checks
• The great resignation: Stemming the tide and retaining talent
• The HR agenda for 2022: What is on the horizon?
• Duty on employer to provide suitable PPE to be extended to workers from 6 April 2022
• Legal updates (including changes to NMW, NICs and statutory pay rates, as well as the new social and healthcare levy)
• Case law (including analysis of the Smith v Pimlico Plumbers decision on holiday pay)
• Launch of Bird & Bird’s Employment Law Zone App 2.0

Right to work in the UK: The transition to digital checks

On 27 December 2021, the Home Office announced changes to right to work checks.

• From 6 April 2022, with the adoption of Identification Document Validation Technology, employers will be able to use certified Identity Service Providers (IDSPs) to conduct digital right to work checks for British and Irish citizens with valid passports/passport cards.
• Also from 6 April 2022, where prospective employees have Biometric Residence Permits (BRPs) employers must use the Home Office’s online right to work check service. Manual checks will no longer be sufficient for the employer to obtain a statutory excuse for the offence of employing an illegal worker.

Right to work checks are a key consideration for the Hotel, Hospitality & Leisure sector. The sector is consistently identified as high-risk by enforcement agencies, due to the diversity of the workforce, and the potential sanctions for non-compliance with rules on illegal working are significant. Our article looks at the implementation and implications of these changes in further detail, to assist employers in understanding what they need to do.

Click here to read our article

The Great Resignation: Stemming the tide and retaining talent

One of the key challenges facing Hotel, Hospitality & Leisure sector employers in light of the COVID-19 pandemic and Brexit, is the need to attract and retain key talent. Media articles and boardrooms are full of talk of the “great resignation” – but why is it happening now, and what practical steps can businesses take to address it?

The trend undoubtedly impacts all parts of the economy, from healthcare to retail, and the phenomenon is connected to other related issues, for example the “Striketober” that hit businesses in the US late last year.

Our article looks at some of causes of this phenomenon, the issues employers face as a result and how they can manage them effectively.

Click here to read our article

The HR Agenda for 2022: What is on the horizon?

The converging crises of a global pandemic and a climate emergency, coupled with the UK’s long-awaited exit from the European Union, gave rise to a multitude of new challenges for employers in 2020 and 2021.

In parallel, employee activism is on the rise, and Hotel, Hospitality & Leisure sector employers will have seen ESG matters (including diversity, equality and inclusion, and sustainability concerns) shoot up the boardroom agenda as the #MeToo and Black Lives Matter movements, and COP26 and the climate emergency, dominated headlines.

It has been a time of great upheaval, change and opportunity for businesses, and in this article, we look at what legal changes and challenges are on the HR agenda for 2022.

Click here to read our article

Duty on Employer to provide suitable PPE to be extended to workers from 6 April 2022

The Personal Protective Equipment at Work (Amendment) Regulations 2022 (SI 2022/8) (amended PPE Regulations), which come into force on 6 April 2022, will extend the duty to provide suitable PPE equipment where there is a health and safety risk to workers, in addition to employees. Businesses are also forbidden from charging workers for PPE, in addition to the existing protection for employees.

These legislative changes were made after it was found that, by not protecting workers in this way, the UK had failed to properly implement elements of the EU Health & Safety Framework Directive and the Council Directive on minimum health & safety requirements for PPE for workers.

Access the legislation here

Legal Updates

• The much-discussed increase in National Insurance Contributions (“NICs”) comes into effect on 6 April 2022. As well as the squeeze this puts on employees’ earnings, it will add cost to termination payments over £30,000 for employers and will have significant consequences for the large contingent workforce now engaged by umbrella companies following the changes to IR35 in 2021. For our analysis of these developments, please click here to read our article.
• The Department for Work and Pensions has published its proposed increases to statutory benefits expected to apply from April 2022, including the following weekly rate increases:
  • statutory maternity pay and maternity allowance from £151.97 to £156.66;
  • statutory paternity pay from £151.97 to £156.66;
  • statutory shared parental pay from £151.97 to £156.66;
  • statutory adoption pay from £151.97 to £156.66; and
  • statutory sick pay from £96.35 to £99.35.
• In addition, the new wage rates were announced in the government’s autumn Budget 2021, which apply from April 2022. The new hourly rates are as follows:

• From April 2022, a new health care and social levy, based on National Insurance Contributions, will be levied, at 1.25% for employers, the self-employed and working-age employees. This will be slightly reformed in April 2023.

Case Law

We have had a number of recent decisions in the employment courts which should be of interest to employers in the Hotel, Hospitality & Leisure sector.

• In Smith v Pimlico Plumbers Ltd [2022], the Court of Appeal overturned the decisions of the Employment Tribunal and the Employment Appeal Tribunal and found that a plumbing and heating engineer was, as a worker within the Employment Rights Act 1996 definition, entitled to up to four weeks’ paid leave for every year worked without limitation, where such leave has been taken but not paid. Until now the position confirmed by the Court of Justice of the European Union in King v Sash Window Workshop Ltd was taken to limit this principle to leave which had not been taken, but this decision extends the principle to cover leave taken by the worker for which payment has not been made by the employer. Mr Smith’s claim for £74,000 of holiday pay succeeded. This is a significant decision for Hotel, Hospitality & Leisure sector employers, particularly those engaging contractors on a self-employed basis.
• In Chell v Tarmac Cement and Lime Ltd [2022], the Court of Appeal upheld the County Court’s finding that the Respondent employer was not liable for the personal injuries suffered by a contractor in the workplace which were caused by practical jokes played by employees. This is a helpful clarification of the law on vicarious liability, and of the limits on an employer’s responsibility for the acts and omissions of employees at work.
• In Lloyd v Google LLC [2021], following on from its decision in the Morrisons employee data breach case last year and the earlier Vidal-Hall v Google LLC case, the Supreme Court has given further clarity on the handling of class actions in the context of data protection violations which should be of interest to employers in the Hotel, Hospitality & Leisure space.

Launch of Bird & Bird's Employment Law Zone App 2.0

We have recently re-launched our Employment Law Zone app. The app is a one-stop source of essential employment law information in the 19 countries around the globe where Bird & Bird offers employment law advice. It will be useful for HR professionals and in-house legal counsel in international Hotel, Hospitality & Leisure businesses, who often need to understand the legal landscape in many countries and sets out to create a quick reference guide, which is easily accessible anywhere from your mobile phone. The Q&A function provides quick and easy answers and includes 55 topics and 19 countries, with topics including parental leave, working hours, discrimination to trade unions to vacation, salary, background checks and much more. The app also includes a resources section which contains links to our key publications such as “Horizon scanning”, “Remote working guide”, “Global restructuring projects” and more.

The App is online and available to download on both Apple and Android.