COVID-19 developments
Many are questioning whether employers will introduce mandatory vaccination, testing or NHS Covid pass policies in 2022. The pandemic has required employers to make difficult decisions in difficult circumstances, which has resulted in a rise of Employment Tribunal (ET) claims. It is expected more ET court rulings will be made on COVID-19 safety at work and the furlough scheme.
ESG, good work and flexibility
Employers hoping to keep on top of the Environmental, Social and Governance (ESG) requirements in 2022 should factor in the following potential employment law changes.
There have been a number of recently announced consultations to discuss the delayed Employment Bill, which may mean the government is moving ahead with its manifesto commitment for worker rights.
Flexible working
Under the provisions of the Employment Rights Act 1996 (ERA), in order for employees to make a flexible working request under the statutory scheme, to change their location hours and time of work, they must have at least 26 weeks’ continuous employment. Employers may refuse, but refusal can only be for 1 of the 8 reasons as set out in the ERA:
- Extra costs that will be a burden on the business;
- Work cannot be reorganised among other staff;
- People cannot be recruited to do the work;
- Flexible working will negatively affect quality of work;
- Flexible working will negatively affect performance;
- The business’ ability to meet customer demand will be negatively affected;
- There is a lack of work to do during the proposed working times; or
- The business is planning structural changes.
In June 2021, the new Flexible Working Bill was introduced to parliament to propose all workers have a legal right to flexible working from day one of employment, rather than needing 26 weeks’ continuous employment. The government launched a consultation ‘making flexible working the default’ which sets out 5 proposals to the current framework and provides an idea of what may be the outcome:
- Making the right to request flexible working a ‘day one’ right, which means from the first day of employment. This means the employee could make a flexible working request to work from home on their first day on the job.
- Making any necessary changes to the 8 business reasons for refusing a request to work flexibly and to identify if they all remain valid.
- Requiring the employer to suggest alternative solutions if they plan to refuse a request.
- Allowing employees to make more than one request in 12 months.
- Making employees aware of their right to request a temporary flexible working arrangement.
In addition to flexible working hours businesses are adapting how they operate to adapt to changing needs as a result of COVID-19, alongside improvements in technology and the UK infrastructure. As such, employees can benefit from more flexible working arrangements, including:
Hybrid Working: this can take several forms, the role may be fully remote (at home or at another location within the UK) or it could be the role is remote with occasional office attendance or alternatively the role is based in the office with remote working allowed.
Part-time: the number of hours may be reduced or structured differently allowing them to be completed over fewer days or outside the traditional 9-5 hours.
Term-time Working: includes hours only during the term-time, allowing parents to have a greater work life balance.
Self-rostering: this allows the employee to manage their own hours based around their personal needs in line with a work roster which is devised to ensure business needs are met.
Job Share: two people are recruited to carry out one role.
4 day working week: In 2020 the UK considered bringing in a 4-day working week to create a better working environment and to move away from the 8-hour working day, 5 days a week.
30 UK firms have agreed to work a 4-day working week for the same salary as part of a 6-month pilot which began on 19 January 2022. The trial aims to see if it will create a better work-life balance working the same number of hours in a 4-day week in comparison to a 5-day week. The trial is being led by 4 Day Week Global and although campaigners are calling for a reduction in working days, critics have warned it may lead to more stress as employees attempt to complete more work within fewer hours.
Good work
The Employment Bill is also expected to further the Good Work agenda by introducing the right for workers with variable hours to request a ‘more stable and predictable’ contract after 26 weeks’ service and potentially a new right of reasonable notice of working hours and potential compensation for short-notice shift cancellation.
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Pay and holidays
To mark the Queen’s platinum jubilee there will be an extra public holiday in 2022, 3 June 2022. The late May bank holiday has been moved to 2 June 2022 to make a four-day weekend.
The National Living Wage (for workers ages 23 and over) is set to increase to £9.50 per hour from April 2022, which is an increase of 6.6%. For full time workers, the 59p increase equates to an extra £1000 annually.
23 and over: Currently £8.91 an hour, from 1 April 2022 will receive £9.50 an hour (6.6% increase)
21 to 22: Currently £8.36 an hour, from 1 April 2022 will receive £9.18 an hour (9.8% increase)
18 to 20: Currently £6.56 an hour, from 1 April 2022 will receive £6.83 an hour (4.1% increase)
16 to 17: Currently receive £4.62 an hour, from 1 April 2022 will receive £4.81 an hour (4.1% increase)
Apprentices: Currently receive £4.30 an hour, from 1 April 2022 will receive £4.81 an hour (11.9% increase)
Due to the ongoing pressure on wages, the social care levy will be introduced UK-wide from April 2022 and will be collected through a 1.25% increase in National Insurance Contributions. The Employment Bill may also introduce regulations to govern how tips are distributed.
Modern Slavery Act
The government has set out proposed changes to the Modern Slavery Act which aim to strengthen current requirements. Currently organisations which conduct business in the UK who have a turnover of £36m or more have been required to produce annual modern slavery statements. However, the Home Office consultation on modern slavery which ran between 9 July 2019 and 17 September 2019 found that whilst some organisations produce comprehensive modern slavery statements, others don’t take their responsibilities seriously. As a result the government has announced plans to introduce compulsory requirements as to the contents of modern slavery statements for the first time, which require statements to be published on a government-run reporting service by one specified deadline. Alongside considering civil penalties for non-compliance due to the growing interest in supply chain governance as part of the ESG agenda.
Diversity and Inclusion
Diversity, equity and inclusion will remain a key focus in the workplace as part of ESG initiatives. Employers should try to stay ahead of the law and focus on increasing the diversity and inclusion within their workforce, as there could be significant developments in this area to come in 2022.
Harassment
The Equality and Human Rights commission (EHRC) has published new guidance on sexual harassment and harassment at work. The types of harassment which the guidance covers are harassment related to a relevant protected characteristic, sexual harassment and less favourable treatment of a worker because the submit to, or reject, sexual harassment or harassment related to sex or gender reassignment. It contains detailed recommendations and best practice employers should take to prevent and deal with harassment in a #MeToo world. Employers have a responsibility for ensuring workers do not face harassment in their workplace. The effects of harassment on individuals are damaging, long-lasting and harm your reputation as an employer.
Much of the guidance covers the legal tests for the different types of harassment and victimisation and when employers may be liable. For example:
> The reasonable steps defence: An employer may not be liable where harassment is committed by a worker during the course of employment, if the employer can show reasonable steps were taken to prevent harassment. This includes the reasonable steps an employer has taken before the harassment takes place alongside the employer's response to a complaint - to show it has taken the complaints seriously.
> Harassment by third parties including clients: The guidance acknowledges there is no current explicit legal duty to prevent third-party harassment. However, the guidance states employers may be held liable for third party harassment under various other legal provisions. For example, indirect discrimination where a policy of failing to deal with these issues disadvantages women, and constructive unfair dismissal claims.
> Liability for harassment by agents: Employers are liable for harassment committed by their agents (agents are those who act on the Employer’s behalf). An employer will not be liable where the agent has acted without the employer’s authority, for example, where the employer provides instructions for the agent to follow and the agent acts outside of the instructions.
The guidance also covers steps employers can take to prevent harassment:
- Having effective policies and procedures in place which are well communicated. The policies should be monitored and their success regularly reviewed.
- Employers should take careful consideration when wording their policies, so as not to deter individuals from making complaints.
- Employers should proactively seek to be aware of what is happening in the workplace and should give workers every opportunity to raise issues with them.
- Workers should be provided with training which addresses each of the types of harassment alongside training on victimisation.
- Employers should assess risks relating to harassment and identify the control measures in order to minimise the risks.
- Adopting a culture of transparency allows workers to feel empowered to speak up about discrimination and confidentiality agreements (otherwise known as non-disclosure agreements (NDA’s) should only be used where lawful. It is not lawful to use NDA’s to prevent workers from whistleblowing, reporting a criminal offence or doing anything required by law such as complying with a regulatory authority.
An upshot of this guidance is how employers are required to manage the risks of harassment in order to combat and prevent sexual harassment in the workplace. In addition, legislation has been promised on NDA’s and reforms are anticipated, potentially in the Employment Bill.
Employers should be aware of forthcoming changes:
- The time limit for bringing claims under the Equality Act 2010 has been extended from 3 months to 6 months, the government has suggested a time limit of six months is likely to be the best course of action.
- Employers will be required to take proactive positive duty to prevent sexual harassment in the workplace. Under current legislation, this is not a requirement and this means that an employer may potentially be liable for not taking preventative measures without the need for an incident to have occurred.
- A duty for employers to prevent third party harassment in the workplace. This duty will allow the defence that an employer has taken all reasonable steps to prevent the harassment.
Pay transparency
The rules governing gender pay gap reporting are to be reviewed in 2022. Due to the pandemic the deadlines for submitting reports were extended, but are set to return to normal this year.
A report published by the Commission on Race and Ethnic Disparities states ethnicity pay gap reporting should be voluntary. It states “it is clear that pay gap reporting currently devised for gender cannot be applied to ethnicity. There are significant statistical and data issues that would arise as a result of substituting binary protected characteristic (male or female) with a characteristic that has multiple categories”. The Commission suggests employers continue to report on a voluntary basis. It is likely guidance for employers wanting to report on a voluntary basis will be published this year.
The government launched a consultation at the end of 2021 for the potential introduction of disability reporting on a voluntary or potentially compulsory basis. The consultation is open up until 25 March 2022 and a response will be published by June.
Gender identity
The Employment Appeal Tribunal (EAT) ruled in last years Forstater case, that a belief that sex cannot be changed and a belief or lack of belief in gender identity are all protected by equality law. These cases raise sensitive issues about how the law regulated the space between holding gender-critical beliefs (protected) and the harassment of trans people (unlawful).
Equal pay
The equal pay claims brought by store workers from Asda, Tesco, Morrisons and other large retailers continue to progress through the courts. Up until this point, rulings have confirmed female store workers can compare themselves to male distribution workers. Subject to challenges on this issue, the court will now consider whether the types of work are of equal value and whether paying different rates for them is justified. Further rulings may be announced throughout 2022 as the cases continue.
Menopause in the workplace
The House of Commons Women and Equalities Committee has launched an inquiry into workplace practices surrounding menopause. The symptoms of menopause vary and may impact an employees ability to perform at work. There has been an increase in the number of women who have brought tribunal claims stating menopause as the main reason behind their unfair dismissal and sexual discrimination claims. The inquiry will examine existing discrimination legislation in workplace practices to identify if enough is being done to prevent women leaving work as a result of menopause and the lack of support available and whether further legislation is needed.
Family rights
The UK government has promised a new right to 12 weeks’ paid neonatal leave for parents whose babies spend time in neonatal care units. In addition, the government has promised to improve redundancy protection for pregnant employees and maternity returners by giving them the priority for alternative employment opportunities if they are made redundant (similar protection is available for parents returning from adoption or shared parental leave). These new rights are expected to be included in the Employment Bill.
Other developments
- Proposals for regulating non-compete clauses; and
- Implementing a ban on “exclusivity clauses” in contracts for low-paid workers.
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The opinions on this page are for general information purposes only and do not constitute legal advice on which you should rely.