A guide to future employment and immigration law.
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In the Pipeline - December 2022
Overview
Now Reading
Employment
Legislation
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Financial Services Regulation
1 January 2022 onwards
- Under the new Investment Firms Prudential Regime (IFPR) firms are required to introduce rules relating to pay for employees who are "material risk takers", including the ability to apply malus or clawback to bonuses in certain circumstances.
- The rules apply in respect of performance years beginning on or after 1 January 2022.
- Under the new Investment Firms Prudential Regime (IFPR) firms are required to introduce rules relating to pay for employees who are "material risk takers", including the ability to apply malus or clawback to bonuses in certain circumstances.
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Employment contracts
5 December 2022
- In early 2021, the Government consulted on extending the ban on exclusivity clauses in employment contracts (which currently only applies in relation to zero hours contracts) to low-paid workers, so that they could not be prevented from seeking work elsewhere.
- The Government's response to the consultation (published in May 2022) confirmed that it would be extending the ban on exclusivity clauses to low-paid workers.
- Regulations have now been passed which introduce this ban with effect from 5 December 2022. Where a worker earns below the lower earnings limit (currently £123 per week), any clause in their employment contract which prevents them working elsewhere (or requires the employer's consent to do so) will be void.
- In early 2021, the Government consulted on extending the ban on exclusivity clauses in employment contracts (which currently only applies in relation to zero hours contracts) to low-paid workers, so that they could not be prevented from seeking work elsewhere.
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National Minimum Wage and National Living Wage
1 April 2023
- The hourly rates of the national living wage and the national minimum wage will increase as follows:
- from £9.50 to £10.42 for workers aged 23 or over
- from £9.18 to £10.18 for workers aged 21 to 22
- from £6.83 to £7.49 for workers aged 18 to 20
- from £4.81 to £5.28 for workers aged under 18
- from £4.81 to £5.28 for apprentices.
- The hourly rates of the national living wage and the national minimum wage will increase as follows:
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Statutory Maternity, Paternity, Adoption, and Shared Parental Pay
2 April 2023
The weekly rate of statutory maternity, paternity, adoption and shared parental pay will increase from £156.66 to £172.48.
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Unfair Dismissal and Statutory Redundancy Pay
6 April 2023
- The maximum compensatory award for unfair dismissal increases every April. The current maximum (applicable from 6 April 2022 to 5 April 2023) is the lower of £93,878 and a year's pay.
- The maximum amount of a week's pay for calculating the unfair dismissal basic award and statutory redundancy pay also increases every April. The current maximum amount of a week's pay (applicable from 6 April 2022 to 5 April 2023) is £571.
- The above maximum amounts will increase again on 6 April 2023.
- The maximum compensatory award for unfair dismissal increases every April. The current maximum (applicable from 6 April 2022 to 5 April 2023) is the lower of £93,878 and a year's pay.
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Statutory Sick Pay
6 April 2023
The weekly rate of statutory sick pay will increase from £99.35 to £109.40.
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Flexible working
No Date
At the end of 2021 the Government published a consultation on making the right to request flexible working available from the start of employment (currently only employees with at least six months' service have the right to request flexible working).
- The government has now published its response to the consultation, which includes the following measures:
- the right to request flexible working will be a day one right
- employers will have a new duty to consult the employee before rejecting a flexible working request
- there will be a two-month period to make a decision on the request (reduced from the current three month period).
- The government has not given a date for when these changes will come into effect.
- The government has now published its response to the consultation, which includes the following measures:
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Employment Status
No date
- Following the publication of the Independent Review of Employment Practices in the Modern Economy (known as the Taylor Review) in 2017, the Government published the Good Work Plan setting out a number of reforms aimed at improving the position of workers including:
- a right for zero-hours workers to request a more stable contract
- refining the employment status test and developing an online employment status tool
- making it easier for casual workers to establish continuity of employment (by increasing the gap required between contracts for breaking continuity from one week to four weeks).
No date has been given for when these changes may be introduced.
- The Government also published an employment status consultation in 2018 which proposed to legislate to improve clarity around employment status tests and also align the tests for employment rights and tax purposes.
- The Government published its response to the employment status consultation in July 2022, and has confirmed that it will not be introducing any new legislation. Instead, the Government has published new guidance on employment status and employment rights for HR and legal professionals.
- Separately, the Government consulted in 2019 on specific measures to improve protection for zero hours workers including proposals for compensation for cancelled shifts, minimum notice of working hours and the right to move onto a fixed hours contract. The Government's response to this consultation is awaited.
- The Government has commissioned the Future of Work review to be conducted during 2022 which will build on Government commitments following the Taylor Review.
- Following the publication of the Independent Review of Employment Practices in the Modern Economy (known as the Taylor Review) in 2017, the Government published the Good Work Plan setting out a number of reforms aimed at improving the position of workers including:
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Restrictive Covenants
No date
The Government has been consulting on proposed changes to non-compete covenants. There are two options under consideration: (i) requiring that the employer pays part of the employee's salary during a non-compete period or (ii) banning non-compete covenants altogether. The consultation closed in February 2021 and the Government's response is awaited.
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Changing Terms
No date
The Government has announced that it will introduce a statutory Code of Practice on the use of "fire and rehire" to change terms of employment. The code will set the steps which employers should follow when seeking to change terms, including meaningful consultation. Where an employer fails to follow the Code, the Employment Tribunal will have the power to increase compensation awarded for any relevant claim by up to 25%.
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Sexual Harassment
No date
- In spring 2018, the Equality and Human Rights Commission (EHRC) published a report, Turning the tables: ending sexual harassment at work, which made a number of recommendations to strengthen the protection for victims of sexual harassment.
- The Government has committed to develop a statutory code of practice on sexual harassment and in 2019 consulted on further measures to address sexual harassment at work.
- In July 2021 the Government responded to the sexual harassment consultation and confirmed that it will introduce a new duty for employers to prevent sexual harassment and third party harassment in the workplace and will consider extending the time limit for claims from three to six months. These changes will be subject to further consultation on the detail.
- In spring 2018, the Equality and Human Rights Commission (EHRC) published a report, Turning the tables: ending sexual harassment at work, which made a number of recommendations to strengthen the protection for victims of sexual harassment.
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Sex discrimination
No date
- In July 2021 the Women and Equalities Committee launched an inquiry into current legislation and workplace practices in relation to the menopause, to seek views on whether employers should be required to put in place a workplace menopause policy.
- In July 2022, the Committee published its report following the inquiry, which includes a recommendation that the government consult on introducing the menopause as a protected characteristic under discrimination law. The government's response is awaited.
- In July 2021 the Women and Equalities Committee launched an inquiry into current legislation and workplace practices in relation to the menopause, to seek views on whether employers should be required to put in place a workplace menopause policy.
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Disability discrimination
No date
In July 2021 the Government published a National Disability Strategy aimed at improving the lives of disabled people, including plans for improving support for employers. Further proposals are expected in 2022.
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Diversity and Pay Reporting
No date
- In August 2018, the Equality and Human Rights Commission (EHRC) published a report on disability and ethnicity pay gaps and progression. The EHRC plans to produce guidance for employers on collecting, using and reporting data on employee ethnicity and disability.
- The Government consulted on ethnicity pay gap reporting in 2018, but has since indicated that it does not intend to introduce mandatory reporting for the time being, and instead will publish guidance for employers on voluntary ethnicity pay gap reporting.
- In late 2021, the Government published a consultation on disability workforce reporting, seeking information on current employer practice and possible approaches to compulsory disability reporting. The consultation closed on 8 April 2022 and the Government's response is awaited.
- In August 2018, the Equality and Human Rights Commission (EHRC) published a report on disability and ethnicity pay gaps and progression. The EHRC plans to produce guidance for employers on collecting, using and reporting data on employee ethnicity and disability.
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Settlement and Confidentiality
No date
- In 2019, the Government consulted on the use of confidentiality provisions in settlement agreements in discrimination and harassment cases. The Government has responded to this consultation and stated that it will legislate to:
- ensure that settlement agreements will not prevent disclosures to the police or healthcare or legal professionals
- require confidentiality clauses in employment contracts and settlement agreements to set out their limitations clearly
- require individuals to take legal advice on the confidentiality provisions in a settlement agreement.
- No date has been given for when the legislation is likely to be introduced.
- In 2019, the Government consulted on the use of confidentiality provisions in settlement agreements in discrimination and harassment cases. The Government has responded to this consultation and stated that it will legislate to:
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Redundancy and Pregnancy/Maternity Leave
No date
- Employees who are made redundant during maternity leave must be offered a suitable alternative vacancy if there is one.
- Following a consultation in 2019, the Government confirmed that it will extend this redundancy protection so that it begins when the employee notifies the employer of the pregnancy and ends six months after the end of the maternity leave. The equivalent redundancy protection for adoption leave will be extended until six months following the end of adoption leave, and similar extensions will apply in relation to shared parental leave. No date has been given for when this will come into effect.
- Draft legislation is progressing through parliament, although no date has been given for when the changes are likely to come into effect.
- Employees who are made redundant during maternity leave must be offered a suitable alternative vacancy if there is one.
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Maternity/Adoption/ Shared Parental and Parental Leave
No date
- The Government has consulted on measures to support working families including:
- how to improve paternity and shared parental leave and pay, including the possibility of dedicated "pots" of leave for each parent
- requiring employers with 250 or more employees to publish their family related leave and pay policies on their website.
- The Government's response to the consultation is awaited.
- The Government has consulted on measures to support working families including:
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Neonatal leave and pay
No date
- The Government is to introduce a new entitlement to up to 12 weeks' neonatal leave and pay for parents of premature babies. This will be in addition to other types of family leave, such as maternity leave.
- No date has yet been given for when this new right will come into effect.
- The Government is to introduce a new entitlement to up to 12 weeks' neonatal leave and pay for parents of premature babies. This will be in addition to other types of family leave, such as maternity leave.
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Carers' leave
No date
- The Government consulted in 2020 on a new form of unpaid statutory leave for employees with unpaid caring responsibilities, such as care of an elderly relative.
- The Government has published its response to the consultation which confirms that it will introduce a new right for carers to take unpaid leave of one week per year, to help manage their caring responsibilities.
- Draft legislation is progressing through parliament although no date has been given for when the changes are likely to come into effect.
- The Government consulted in 2020 on a new form of unpaid statutory leave for employees with unpaid caring responsibilities, such as care of an elderly relative.
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Listed companies
No date
- The Government has consulted on audit and corporate governance reforms for listed companies and larger private companies which include new directors' duties relating to risk management, and proposals to claw-back directors' bonuses if the company collapses or there are serious director failings within two years of the bonus payment.
- The consultation closed in July 2021 and the Government's response is awaited.
- The Government has consulted on audit and corporate governance reforms for listed companies and larger private companies which include new directors' duties relating to risk management, and proposals to claw-back directors' bonuses if the company collapses or there are serious director failings within two years of the bonus payment.
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Enforcement of employment rights
No date
The Government has announced that it will create a single enforcement body for employment rights which will enforce national minimum wage, labour exploitation and modern slavery, holiday pay for vulnerable workers and statutory sick pay. The timing for this change has not been specified.
Immigration
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Entry requirements for business visitors
1 January 2021 onwards
- Business visitors from outside the UK and Ireland (including EU and Swiss nationals) are required to qualify for entry under the visitor rules, with activities subject to strict limits, including a prohibition on undertaking productive work.
- Confirmation of the purpose, duration as well as funds and accommodation available for business trips may be checked at UK border control.
- Our interactive map shows the rules which apply in different European countries.
- Business visitors from outside the UK and Ireland (including EU and Swiss nationals) are required to qualify for entry under the visitor rules, with activities subject to strict limits, including a prohibition on undertaking productive work.
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End of Coronavirus (COVID-19) Concessions to UK visa applicants and visa holders
Late 2021 onwards
- Various concessions were introduced to assist UK visa holders and visa applicants affected by the COVID-19 pandemic including the 'exceptional assurance' for individuals who were not able to leave the UK prior to their visa expiry date.
- Some of these concessions are being phased out, starting from 30 September 2021 onwards.
- Various concessions were introduced to assist UK visa holders and visa applicants affected by the COVID-19 pandemic including the 'exceptional assurance' for individuals who were not able to leave the UK prior to their visa expiry date.
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Immigration sponsored visa reforms
Late 2021 onwards
- Following Brexit, European Economic Area (EEA) and Swiss citizens (referred to here as "EU nationals"), and their family members who were not resident in the UK prior to 31 December 2020 are now subject to UK immigration controls in the same way as non-EU nationals.
- A new points-based immigration system was introduced in December 2020, which extended to cover EU nationals who arrive in the UK after 1 January 2021. Employer sponsorship under the Skilled Worker and Intra Company Transfer visa categories are key routes for work visas under the new regime.
- The Government has set out its plan to make changes to the sponsorship system in its sponsorship roadmap policy paper with reforms to the sponsorship system due from 2022 onwards through to 2024.
- The planned changes include increasing processing speed for sponsor licence applications and enhancing immigration sponsorship compliance systems.
- Following Brexit, European Economic Area (EEA) and Swiss citizens (referred to here as "EU nationals"), and their family members who were not resident in the UK prior to 31 December 2020 are now subject to UK immigration controls in the same way as non-EU nationals.
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Expansion of Youth Mobility Scheme visa route
1 January 2022 onwards
- The Youth Mobility Scheme visa route allows 18- to 30-year-olds to come to the UK to work in any role for a two-year duration.
- Since 1 January 2022, the route was extended to eligible applicants from Iceland and India, in addition to Australia, Canada, Monaco, New Zealand, San Marino, Hong Kong, Japan, South Korea and Taiwan. Certain British overseas passport holders may also apply.
- The scheme is also due to extend to applicants from India via a ballot scheme which has not yet opened, with applicants required to hold a degree level qualification or have a minimum of three years' work experience in a skilled role.
- The Youth Mobility Scheme visa route allows 18- to 30-year-olds to come to the UK to work in any role for a two-year duration.
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Closure of Tier 1 Investor visa route and reform of Innovator route
17 February 2022 onwards
- The Tier 1 Investor visa route which catered to high-net-worth individuals with at least £2 million to invest in the UK has now closed to new applicants with effect from 17 February 2022.
- Applications to extend any existing visas under this route must be submitted by 17 February 2026 and applications for indefinite leave to remain must be submitted by 17 February 2028.
- The Home Office has announced that it intends to amend the existing Innovator visa category to cater to investment-related migration in Autumn 2022.
- The Tier 1 Investor visa route which catered to high-net-worth individuals with at least £2 million to invest in the UK has now closed to new applicants with effect from 17 February 2022.
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Introduction of new visa routes
Spring 2022 onwards
- The Global Business Mobility visa category was introduced in April 2022, to allow overseas businesses to establish a presence or transfer skilled or specialist staff to the UK. The previous 'Representative of an overseas business' visa route is now closed to new entrants and the previous 'Intra Company Transfer' visa route has been replaced by the new Global Business Mobility: Senior or Specialist Worker route.
- A new High Potential Individual visa route was introduced in June 2022 for recent graduates from a specified list of top global universities who want to work or look for work in the UK following successful completion of their degree. This route will not require employer sponsorship.
- The new “scale-up” visa route opened in August 2022 to provide a fast-track visa route for individuals with a job offer for a highly skilled role, which meets specified salary requirements, from a recognised UK scale-up. This route will require employer sponsorship for an initial six-month period and the sponsor employer will need to hold a 'scale-up' licence.
- The Global Business Mobility visa category was introduced in April 2022, to allow overseas businesses to establish a presence or transfer skilled or specialist staff to the UK. The previous 'Representative of an overseas business' visa route is now closed to new entrants and the previous 'Intra Company Transfer' visa route has been replaced by the new Global Business Mobility: Senior or Specialist Worker route.
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Electronic Travel Authorisations and digital immigration system
Ongoing – phased programme to 2025
- EU applicants granted status under the EU settlement scheme or the employer sponsored work visa routes are issued digital status, rather than a physical passport endorsement or a residence permit. Digital status is also now issued to in-country applicants issued visas under the sponsored work visa routes, which is linked to their biometric residence permits. Certain nationals are also no longer issued new biometric residence permits when granted extended or updated sponsored work visa status in the UK.
- Such applicants access their UK immigration status via an online portal and are able to share information on their status online with prospective employers or landlords to evidence of their right to remain in the UK.
- This change is part of the streamlining and digitisation of the UK's visa system, with a move towards a digital immigration system.
- UK visa applicants currently submit physical passports for endorsement as part of their visa application process, and in future, it is intended that visas will be issued electronically.
- The Government plans to introduce a universal ‘permission to travel’ requirement which will require everyone wishing to travel to the UK (except British and Irish citizens) to seek permission in advance. An Electronic Travel Authorisations (similar to the US ESTA) system will be introduced for visitors.
- EU applicants granted status under the EU settlement scheme or the employer sponsored work visa routes are issued digital status, rather than a physical passport endorsement or a residence permit. Digital status is also now issued to in-country applicants issued visas under the sponsored work visa routes, which is linked to their biometric residence permits. Certain nationals are also no longer issued new biometric residence permits when granted extended or updated sponsored work visa status in the UK.
