Employment Law issues 2022

As a result of the pandemic, a number of employment law developments expected over the previous two years have been put on hold or have seemingly fallen by the wayside without any proposed timetable for introduction; however, as we all learn to live with COVID-19, 2022 is likely to see a number of employment law developments get back on track. This article sets out a number of the key issues to look out for this year:

COVID-19

Whilst many employers have now settled in to a 'new way of work', accommodating the impacts of, and government requirements associated with, COVID, there remains a number of employment law issues relating to the pandemic.

The ever-changing rules regarding statutory sick pay and self-isolation being one, particularly regarding the interplay with those employees who have chosen not to be vaccinated, with certain employers taking robust and public stances on this issue. See here and here for further detail.

Without government mandates on vaccination, employers will continue to grapple with the 'no jab, no job' concept and how far this stance can be advanced in light of discrimination laws. The Tribunals and courts are likely to hear a large body of COVID-related litigation this year, which will hopefully provide some guidance on issues such as mandatory testing and/or vaccination policies and whether 'long-COVID' amounts to a disability. 

Flexible Working

A key impact of the pandemic has to been to centralise the issue of flexible working for many businesses (with a 52% increase in flexible working tribunal claims in 2020/2021), such that a full-scale return to office-working may be unlikely.

The Employment Bill (which has been delayed as a result of the pandemic) is anticipated to be published in 2022 and, following a government consultation from September to December 2021, is likely to include an expanded right to request flexible working from day one of employment (removing the current 26-week qualifying period).  The proposals do not provide an automatic right for employees to work on a flexible basis, however the scope of the right is likely to be extended and will centralise the right for many employees, enabling earlier conversations about their working arrangements and potentially changing the basis on which such requests can be refused. 

In addition, and due to the impact of 'hidden overtime' on employees' health and wellbeing when working from home, there have been calls for the government to introduce a 'right to disconnect'; enabling employees to disengage from work-related communications and activities outside of their normal working hours. This is an effort to prevent employee burnout and provide employees with a right to bring a claim in the employment tribunal if they were subjected to any form of detriment by their employer for failing or refusing to work outside of their working hours. Such a right has been introduced in number of European countries and is currently the subject of consultation in Scotland, and it is hoped that this right will feature in the Employment Bill anticipated this year.

Irrespective of any future legislation however, it is now recognised that a key aspect in recruiting top talent is whether an employer offers agile, hybrid and/or home working; accordingly, going forward, offering staff greater flexibility as to when and where they work will likely assist in both attracting and retaining talent.

Workforce reporting obligations

The gender pay gap reporting regulations will be reviewed this year (it being five years since they were introduced), with a view to assessing whether the reporting requirement is achieving the intended objectives and whether those objectives remain appropriate. Any changes resulting from the review will likely be subject to consultation, such that there is unlikely to be any imminent impact, however it does not appear that the reporting requirements will be delayed this year (as they were in 2021), so affected employers should prepare and submit their reports by the normal 4 April deadline.

In addition, a consultation is underway regarding disability workforce reporting, through which the government is considering views on implementing mandatory reporting for employers with 250 or more employees and how such mandatory reporting could be implemented. The consultation is open until 25 March 2022, with a response expected by 17 June 2022.

Further, whilst the government failed to respond to its formal consultation on ethnicity pay reporting (which closed in January 2019), calls for measures to be implemented to tackle barriers for ethnic minorities in the workplace are increasing, with guidance expected for those employers wanting to report on a voluntary basis.

Umbrella companies

The government has launched a consultation on umbrella companies, inviting views on the role that such companies play in the labour market and 'how they interact with the tax and employment rights systems'. Umbrella companies have become increasingly prevalent (particularly following the recent extension of the off-payroll working rules) and play an important role in the current labour market. However, the government is concerned by the level of non-compliance by umbrella companies with employment law practices and the tax and regulatory challenges presented by the current market. The consultation therefore notes an intention to bring umbrella companies into scope for labour market enforcement. The closing date for submissions is 22 February 2022.

Contractual confidentiality, non-competition and exclusivity provisions

Another proposal which is expected as part of the Employment Bill, is the measure curbing the use of confidentiality/non-disclosure provisions in employment contracts and settlement agreements. The government has indicated that it will introduce legislation ensuring that the limits of such provisions are clear to those signing up to them and to ensure that individuals receive specific advice on the nature of such clauses prior to signing a formal settlement agreement, with enforcement measures in place for any clauses which do not meet the legal requirements.

In addition, the formal consultation on post-termination non-compete restrictions – which raised the possibility of either requiring payment for any period of restriction or banning such clauses entirely – closed in early 2021 and a formal response has yet to be published. The consultation was launched in response to the economic impact of the pandemic, so as to explore ways of increasing competition, however it is considered unlikely that non-compete restrictions will be banned in their entirety.  A formal response to the consultation will hopefully be published in 2022.

Another consultation was launched by BEIS on 4 December 2020, on measures to extend the ban on exclusivity clauses in employment contracts to cover those earning under the Lower Earnings Limit (currently £120 a week). The proposal - which was launched in response to the impact of the COVID-19 pandemic on low earners - is intended to enable low-paid workers to seek additional work where they are unable to secure sufficient hours of work from their current employer. The consultation closed on 26 February 2021 but there is currently no scheduled timetable for next steps.

Redundancy protection

In response to a BEIS consultation, the government has confirmed its intention to extend the protection against redundancy afforded to pregnant women and new parents to apply from the point the employee informs her employer of her pregnancy to six months after the end of the associated family leave period. It is understood that the right will be introduced as part of the long-awaited Employment Bill, so the timeframe for its introduction is currently unknown.

Sexual harassment

Following the 2019 consultation on workplace sexual harassment, the government stated an intention to introduce a proactive duty on employers to prevent sexual and third-party harassment in the workplace. Again, it is likely that these obligations will form part of the Employment Bill and there is therefore no definitive time period for their introduction.

Menopause

2021 saw employers becoming far more aware of the impact and effects of the menopause on its workforce, with a Tribunal confirming that, depending on the facts, menopausal symptoms could amount to a disability under equality legislation. Following this, an independent report was published in November 2021 on Menopause and Employment, with recommendations expected to follow this year.

Financial increases

The annual increases to the National Minimum Wage rates will take effect in April 2022 as follows:

In addition to the above:

• Statutory sick pay will increase from £96.35 to £99.35 per week

• Statutory family leave pay will increase from £151.97 to £156.66 per week

Whilst the above are the most likely and expected developments over the coming 12 months, there is also the more radical suggestion of a four-day working week, which is now accepted practice in Iceland and which is being trialled (successfully) in a number of other jurisdictions.  The world of work and employee expectations is clearly changing.  Hopefully 2022 will see legislation to implement, support and clarify those changes.