Although the start of 2022 continues to be dominated by the COVID-19 pandemic, it is hoped that 2022 may see the introduction of some of the legislative developments, which were delayed or postponed since 2019. This blog post looks at what changes employers can expect in relation to employment law this year, and what steps employers should be taking to prepare for any such changes.
The Future Workplace
Hybrid and Flexible working: Since the start of the pandemic there has been a shift towards home working and more flexible hours. While this was initially a necessity as a result of lockdown, employees are now requesting more flexible working arrangements and employers are seeing some of the benefits of a hybrid workplace. However, the current rules on flexible working are not necessarily fit for purpose. In September 2021, the Government issued a consultation paper on flexible working which closed on 1 December 2021. There were various changes being considered. These included making the right to request flexible working a day one right by removing the 26 weeks qualifying service requirement; removing the rule that only one request can be made in each year; and a change in the timeframe for considering requests. The changes to flexible working were initially proposed in the Employment Bill (see below) and so we wait to see what the changes will be when it is introduced.
AI in the workplace: The increase in working from home has seen an increase in remote monitoring of employees. The use of AI and machine learning has also increased. The ICO has consulted on new guidance on data protection and employment practices. In addition, the EHRC is expected to revise guidance on the use of new technologies and how they interact with the discrimination provisions of the Equality Act 2010.
Equality and Diversity
Pay Gap Reporting: The Equality Act 2020 (Gender Pay Gap Information) Regulations 2017came into force on 6 April 2017. The regulations require that within five years the Secretary of State must review the regulations and publish a report on whether they meet their objectives. This would therefore need to be done by April this year, but it is not clear whether there will be any significant changes as a result. A consultation on ethnicity pay gap reporting was published in 2019. The Government announced in 2021 that it was still considering its response and it is hoped that this response may be published in 2022. On 16 December 2021, the Government published a consultation paper on disability workforce reporting for employers with 250 or more employees. This consultation closes on 25 March 2022. The consultation response and next steps are likely to be published in 2022. In addition to these consultations, the rules governing gender pay gap reporting are set to be reviewed this year.
Sexual Harassment: On 21 July 2021 the Government published its response to the consultation on sexual harassment. The response set out a proposal to introduce a new duty on employers to prevent sexual harassment in the workplace and also to make employers responsible for third party harassment. There would be a defence to the duty on the employer if it has taken all reasonable steps to prevent the harassment taking place. These changes could be included in the Employment Bill and will require a change in how employers manage the risk of harassment claims.
Menopause in the workplace :The Women and Equalities committee set up an inquiry into menopause in the workplace and the extent to which women with menopausal symptoms suffer discrimination in the workplace. The recommendations are expected in 2022 and this could lead to changes to the Equality Act 2022.
The Government also indicated that it was considering an extension of the time limits for bringing claims under the Equality Act 2010 from three months to six months. The Government has also promised legislation relation to the use of Non-disclosure agreements (NDAs).
The Department for Business Energy and Industrial Strategy (BEIS) announced a review of whistleblowing legislation, although the scope of the review is not yet clear. In addition, since 17 December 2021, EU Member States have been obliged to bring into force laws necessary to establish internal reporting channels, implementing the EU Whistleblowing Directive (2019/1937/EU). Although the UK is not required to implement it, the Directive may influence organisations established in multiple jurisdictions.
Increase in employment costs for employers
With effect from 6 April 2022 National Insurance contributions for employers and employees will rise by 1.25%. The purpose of the increase is to fund health and social care and from April 2023, the increase will be replaced by a separate health and social care levy and the NIC rates will revert to their current level.
In addition to the increase in the cost of NICs, employers will also find that there is an increase in the National Living Wage and the National Minimum Wage with effect from 1 April 2022. There will also be the usual increase in the statutory rates payable including maternity pay and statutory sick pay in April 2022.
The Government first proposed an Employment Bill in 2019. However, it has not yet progressed and it is anticipated that this will occur in 2022. In addition to a proposal to make flexible working the default unless the employer has a good reason not to allow it, the Employment Bill was also intended to include the following provisions:
- Single enforcement body – The legislation would provide for a single enforcement body which will replace the HMRC National Minimum Wage Enforcement Team, the Employment Agency Standards Inspectorate and the Gangmasters and Labour Abuse Authority.
- Neonatal leave – This will be a new right for parents whose babies require neonatal care to take neotatal leave and pay.
- Unpaid leave for carers – The Government proposed in 2019 to introduce a right for employees with caring responsibilities to take one week’s unpaid carer’s leave each year. Such employees will also be protected from dismissal and other detrimental treatment as a result of taking such leave.
- Extended redundancy protection for mothers on maternity leave and returning to work – the obligation to offer a suitable available vacancy to a woman on maternity leave whose position is redundant will be extended so that it will apply from the point at which she informs her employer that she is pregnant until six months after the end of her maternity leave. This will also apply to those taking adoption and shared parental leave.
- Tips – this will be an obligation on employers to pass on all tips and service charges to workers.
- The right to request a more predictable working pattern for casual workers – This right would apply for those after 26 week’s service so that those on zero hours contracts can request guaranteed hours which better reflect the hours worked.
Other consultation papers
Other consultation papers were also published in 2020 and 2021 and so we may see developments in relation to other areas:
- Enforceability of non-compete covenants – The Government may implement its proposals for regulating the use of non-compete covenants.
- Exclusivity clauses beyond zero hours contracts – The Government has consulted on a proposal to extend the ban on exclusivity clauses beyond zero hours contracts so that it covers contracts where workers’ guaranteed weekly income is less that the Lower Earnings Limit (currently £120 per week)
Key cases in 2022.
We also expect some judgments to be delivered in 2022.
Right to holiday pay for workers– The Court of Appeal will give its decision in Smith v Pimlico Plumbers on the extent of an employer’s liability to pay for holiday in circumstances where the individual was not paid holiday as a consequence of him being treated as self-employed.
How to calculate holiday for part year workers. The Supreme Court will also give its judgement in the case of Harpur Trust v Brazel which considered how the holiday entitlement for those working only part of a year should be calculated.
Agency workers – The Court of Appeal will hear the appeal in Angard Staffing Solutions v Kocur on whether a worker who has an open ended employment contract with an agency is entitled to agency worker rights under the Agency Workers Regulations 2010 including the right to apply for, and be considered for, vacancies on the same terms as employees recruited directly by the hirer.