Blog: 2022 Employment law developments

After a relatively quiet year for employment legislation in 2021, employers are likely to see several developments in 2022 alongside judgments in some key employment cases.

1. The Employment Bill – flexible working & the Good Work agenda

Many employers have put environmental, social and governance (ESG) issues higher up their agenda, if not at the heart of their business over recent years, so a number of the following possible employment law changes will be of interest:

Flexible working

The delayed Employment Bill could be published this year.  It’s expected to include a new right to request flexible working from day one of employment (a ‘day one right’). As the consultation only closed in December, we may not see legislation in 2022 but we’re likely to see details of final plans this year. Proposed reforms are relatively limited in scope but they remain part of discussions about the “new normal” working arrangements accelerated by the pandemic which will become policy for many employers going forwards.  (See here for more background on these proposals)

The Good Work Agenda

The Good Work agenda is progressed in the Employment Bill by:

  • introducing a new right for workers with variable hours to request a more ‘stable’/ ‘predictable’ contract after 26 weeks’ service
  • potentially new rights to give employees reasonable notice of a change to working hours and compensation for short-notice shift cancellation.

2. Pay and holidays

The Queen’s Platinum Jubilee this year means an extra public holiday (Friday 3 June).  The late May bank holiday has been moved to Thursday 2 June creating a four-day weekend (hooray!).

Holiday pay calculations have been less concerning for employers in recent years. However, judgement from the Supreme Court in the holiday pay case of Harpur v Brazel is anticipated this year.  This case concerns holiday pay for a casual worker who was under contract all year round but actually only worked in term-times. The judgment might clarify various holiday pay rights, including the practice of paying a holiday pay supplement to casual workers of 12.07%.

The National Living Wage (for workers aged 23 and over) rises to £9.50 an hour from April 2022.

The social care levy will be introduced UK-wide from April 2022.  This will be collected by an NI contribution rise of 1.25%.

Hospitality businesses particularly will be keeping an eye on the possible introduction of new regulations governing how tips should be distributed.

There will be the usual uplifts to statutory rates and limits (including statutory sick pay and maternity pay) in April 2022.  We’ll share these when they are available.

3. Pandemic-related developments

Government appears reluctant to impose new restrictions but we’re still anticipating plenty of employment law issues this year.

Making headlines at the moment is the Government decision to introduce mandatory vaccination for all those working in a role involving “direct contact with patients” from April 2022. Other employers may also seek to introduce mandatory vaccination, testing or NHS Covid pass policies.

The first tribunal rulings about Covid-related “health and safety” and whistleblowing cases are starting to trickle through and no doubt will gain pace in 2022.  We can also anticipate more rulings about the furlough scheme and whether an “anti-vaxxer” position is capable of being a “protected belief”.

The first cases to reach court will involve events from the early days of the pandemic, and we may see cases from the “no jab no job” policies some employers implemented (although the backlogs are so significant, 2023 may be more realistic).  We might also see some cases coming to Tribunal this year on when “long Covid” is a disability for equality law purposes.

4. Whistleblowing

The EU whistleblowing directive is finally being implemented in 2022.  Although this directive does not apply to us in the UK, it is likely to influence best practice here, particularly the Directive’s requirement to provide feedback to whistle-blowers within certain specified timescales.

5. Modern Slavery Act

The Modern Slavery Act is likely to be strengthened this year.  Plans were announced last September so when these are introduced, we’d recommend those companies affected by the current reporting requirements revisit their anti-slavery statements.

6. Diversity and inclusion

Diversity, equity and inclusion will remain high on the agenda this year.  Diversity monitoring as well as ‘positive action’ are important topics for many employers and there is often a desire to stay a step ahead of the legislation in this area.  Here are some key likely developments:

Harassment

The government has promised to introduce a new ‘proactive’ duty on employers to prevent sexual harassment in the workplace, putting the onus of responsibility on employers if employees are harassed by customers or other third parties. Again, the Employment Bill could be used for such changes. The Equality and Human Rights Commission may use this year to start a consultation process for its new Code of Practice on Harassment.  Guidance on this was published shortly before the start of the pandemic.  This would create significant change in how employers are required to manage the risks of harassment.

Legislation is also expected on non-disclosure agreements (NDAs) but has so far failed to materialise.  Again, the Employment Bill would allow for these.

Pay Transparency – Gender Pay, Ethnicity Reporting, Disability

We expect the rules governing gender pay gap (GPG) reporting to be reviewed in 2022. Change may be afoot but we’d still expect a consultation process before any alterations are made. After extended deadlines for reporting due to the pandemic, normal submission deadlines are expected to resume this year.

The introduction of Ethnicity Pay Reporting has been debated for some time now but 2022 may finally see some developments in how and when it will be introduced.   Although there is much debate about the compulsory nature of such reporting, calls for regulation continue. Voluntary reporting may in fact be the start point.

At the end of 2021, the government launched a consultation on the potential introduction of disability reporting. This will close 25 March 2022 with a published response expected in June.

Gender identity

Many of you will have been following the Maya Forstater case.  In 2021 the Employment Appeal Tribunal (EAT) ruled that a belief that sex cannot be changed is protected by equality law – as is a belief – or lack of belief – in gender identity.   2022 may see similar cases involving “gender critical” beliefs coming to the EAT in the form of Higgs v Farmor’s School and Mackereth v DWP.   Both cases highlight the difficult balance between legal regulation of those people who hold ‘protected’ gender-critical beliefs and the unlawful harassment of trans people.

Equal pay

The equal pay claims brought by store workers at Asda, Tesco, Morrisons and other large retailers continue to progress through the courts. Rulings up to this point have confirmed that female store workers can compare themselves to male distribution depot workers. Subject to any further challenges on that issue, the courts will now focus on whether the relevant types of work are of equal value and, if so, whether paying different rates for them is justified.  We would not expect these cases to conclude in 2022 but we may see further rulings as they continue their journey.

7. Family rights

By August 2022, EU member states need to have implemented new EU work-life balance directive which adds new rights for carers and working parents. Although the UK does not need to implement this directive (as a non-EU state), we have promised to match the new rights for carers.

Under the UK government’s proposals, working carers will be able to take up to 5 days’ UNPAID carers leave each year to help them with their caring responsibilities. The government published details on this in September 2021 and we expect the Employment Bill to pave the way for its introduction.

Also likely to be in the Employment Bill are 2 more government promises:

  • A new right to 12 weeks’ paid neonatal leave for parents whose babies spend time in neonatal care units
  • Improved redundancy protection for pregnant employees and maternity returners. This will give such women priority for alternative employment opportunities if they were made redundant.  Parents returning from adoption or shared parental leave will get similar protection.

8. Other developments

We may see some movement in a few other areas of employment law such as;

  • Proposals for regulating non-compete clauses following a consultation back in 2020.
  • Exclusivity clauses in employment contracts for low-paid workers may also be a possibility.
  • The Employment Bill may also enable the creation of a single enforcement body for statutory sick pay, holiday pay for vulnerable workers and the regulation of umbrella companies.  The intention is to combine the Employment Agency Standards Inspectorate, the Gangmasters and Labour Abuse Authority and HMRC’s National Minimum Wage Enforcement Team into one enforcement body.

So, 2022 could be a busy year for employment law.  As always, we’ll keep you informed of developments and their repercussions for you as an employer. In the meantime, please do get in touch if there is anything we can help you with.

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Luke Menzies, Menzies Law January 2022