Employment Law Coffee Break: Increase in compensation limits, Covid-19 update, new working practices and disabled employees, and pension age

Increase in compensation limits announced

Legislation has been laid before Parliament setting out the annual increase in employment tribunal compensation limits and statutory payments where the relevant date for the purposes of calculating the award falls on or after 6 April 2022:

• A week's pay for calculating the unfair dismissal basic award and statutory redundancy payments will increase from £544 to £571.
• The maximum compensatory award for unfair dismissal will increase from £89,493 to £93,878 (or 12 months' salary if lower). There is no cap on compensation where an employee is dismissed for whistleblowing or carrying out health and safety activities.

Covid 19 Update

As employers adapt their working practices in light of the ending of the legal requirement to self-isolate and the government's Living with Covid plan, coupled with the latest updated guidance, employers should note the following:

• From 17 March the revisions to the Statutory Sick Pay (SSP) rules put in place for the Covid-19 pandemic will no longer be available. Instead, the position on SSP will revert to pre-pandemic rules where it will only be payable from day four of an absence and where an employee is too unwell to work. Coupled with these changes, where an employer can benefit from the Statutory Sick Pay Rebate Scheme, only absences up to 17 March 2022 will be covered: with employers having up to 24 March to submit their claims.

• The temporary Covid-19 adjusted right to work check measures will now end on 30 September 2022 (inclusive) and not 5 April 2022, to allow employers sufficient time to get ready for the new "identification document validation technology" to check the right to work of UK and Irish citizens who hold a valid passport. Read more here.

An issue which employers must remain alive to is the impact of long Covid among their workforce, with figures from the Office for National Statistics indicating that around one in 50 are thought to be affected by the condition. Whether or not long Covid is a protected disability for the purposes of the Equality Act 2010 will depend on whether the employee's condition meets the statutory definition. However, it will be sensible at this stage for employers to adopt a cautious approach, which is reflected in comments from the head of employment policy at the Equality and Human Rights Commission. It would be prudent for employers to consider what reasonable adjustments may be appropriate to support workers with long Covid on a temporary or perhaps more permanent basis. Jennifer Williams, a conciliator at Acas, has also stressed that employers should be mindful that people with long Covid may develop mental health concerns, including depression and anxiety, as a consequence.

Impact of new working practices and procedures on disabled employees

The last two years have seen an acceleration in the roll out of digital tools as employers have adapted to employees working from home. Many employers will have training and support programmes in place to enable employees to use these tools effectively, but it is important to remember that not all employees may be familiar with the technology and may not be in a position to effectively access the support and training available. This may be exacerbated where an individual is suffering from a disability. This is highlighted in a recent tribunal decision.

Here the claimant suffered from an anxiety disorder amounting to a disability, which the tribunal found the employer had constructive knowledge of at the relevant time. The employer had invited the claimant to a disciplinary meeting via Microsoft Teams but which the claimant did not know how to connect to. An invitation to a rescheduled meeting was sent out again by Teams with a warning that if he did not attend a decision may be taken in the claimant's absence. The claimant did not join and was subsequently dismissed. His appeal against dismissal was unsuccessful.

The tribunal held that the claimant was placed at a substantial disadvantage by the employer's practice of using Teams to hold disciplinary meetings remotely. While acknowledging that "anyone with a lack of technical knowledge and equipment would have had the same problem with it, even if they were not disabled", the tribunal considered a non-disabled person "would have been better able to cope with the problem better than the Claimant was able to", for example, by contacting the respondent at the time to find another way to access the disciplinary hearing. This contrasted with the position of the claimant who had to overcome an "additional mental obstacle". Here it would have been a "simple, inexpensive and timely" adjustment for the employer to reschedule the disciplinary hearing and conduct it by telephone.

The decision highlights the need to consider carefully how new working practices and procedures affect employees within the organisation and whether any difficulties in fact arise from a medical condition. Remarks from the Industrial Jury acknowledge that especially with mental ill health it is not always easy to detect disability and here, even a "plainly conscientious" HR adviser, "did not pick up the obvious signs the Claimant gave as to his mental health" due to a lack of training. HR teams need to ensure they are educated on liabilities towards disabled employees and "in particular on when knowledge and disabilities might arise and on when the obligation to make adjustments might arise". Had the HR adviser here "had some knowledge of mental illness, disability and obligations an employer now has, alarm bells would have rung… and she would have been able to take action".

This case is a helpful reminder of the fact that the duty to consider reasonable adjustments where an individual is disabled exists throughout the employment relationship (including recruitment interviews, disciplinary hearings, poor performance procedures, redundancy procedures and on a change of role or promotion) and that careful consideration is needed as the reasonable adjustments required are not always self-evident. All adjustments should be approached on a case by case basis in consultation with the affected employee.

HR pensions spotlight: I want to retire at 55. Will I have to wait until I'm 57?

The "normal minimum pension age" (the earliest age at which pension schemes can pay benefits) is increasing from 55 to 57. In our spotlight, we look at what is changing and suggest actions for employers.