A new year commences and with it comes a number of employment law developments that employers should be aware of. This article looks at the key developments that were expected, but delayed in 2021, and which will continue in 2022. If you would like specific advice on any of the matters contained in this article please do not hesitate to contact Carmel Sunley.
While many employers had hoped that the changes brought by the pandemic would have plateaued in the latter half of 2021, this has not proven to be the case and the COVID-19 pandemic continues to affect the employment landscape. Employees are again recommended to work from home wherever possible and homeworking has become the new normal for many employees. In fact, the pandemic has centralised the whole issue of flexible working for many employers and employees and in periods of fewer restrictions many employees returned to offices on a hybrid basis. In many respects, the pandemic acted as a catalyst, particularly around hybrid working, and led to government consultation on flexible working.
A government consultation on making flexible working the “default position” ran from September to December 2021 and set out five proposals including making flexible working a day one right.
The government’s proposals did not introduce an automatic right for employees to work flexibly. Rather, the proposals included a number of measures to broaden the scope of the right, while retaining the basic system involving a conversation between employer and employee about how to balance work requirements and individual needs, potentially changing the statutory business reasons for refusing a flexible working request. As the consultation closed on 1 December 2021, it is unlikely there will be a response from the government until the latter half of 2022 and we will advise you of any progress in upcoming articles.
Further developing themes on flexible working which employers may continue to face in 2022 include requests from employees to work flexibly abroad and the impact on wellbeing of continued working from home. In respect of the impact of working from home, research about the significant amount of hidden overtime while working from home during the pandemic, has led to calls for the government to introduce a “right to disconnect”. This has recently been brought into effect in some European countries and is being discussed by the Scottish Government in relation to their own employees. It was also mentioned in a briefing paper on hybrid working published by the House of Commons Library in November 2021. Again, we will update you on any legislative developments that may arise out of these issues, but the right to disconnect from work is clearly an issue that employers should be mindful of and any complaints brought by employees should be treated seriously and handled through appropriate company policies and procedures to avoid potential claims for constructive unfair dismissal.
Vaccinations at work
On 1 April 2022 regulations come into force which will make vaccination against COVID-19 a requirement for health and social care workers in a face-to-face role. Employers in other sectors, who have a duty to maintain a safe workplace, have been encouraging staff to get vaccinated. In the absence of further government requirements on mandatory vaccinations, there would be risks for employers who may want to make vaccination a requirement for new or existing staff. The key legal problem will be the risk of potential unfair dismissal, and potential discrimination claims if employees are dismissed for refusing to be vaccinated and the employer is unable to justify dismissal as a proportionate means of achieving a legitimate aim. Each case will turn on its facts and it is best to take specific legal advice before making any decision to dismiss in these circumstances.
New duty to prevent sexual harassment
On 21 July 2021, the government published its response to the 2019 consultation on workplace sexual harassment. The response confirmed a new duty for employers to prevent sexual and third-party harassment, which is likely to include a defence where an employer has taken “all reasonable steps” to prevent the harassment. The duty will come into force when “Parliamentary time allows” and we will keep you updated on this legislative development.
Review of gender pay gap reporting regulations
By April 2022, the government must review the gender pay gap regulations as they are obliged to do so within five years of the regulations coming into force. The purpose of this review will be to assess the extent to which the reporting requirement achieved the objectives of the regulations, whether the objectives remain appropriate and whether any unnecessary burden is placed on employers. We will advise on the outcome of this government review later in the year.
The Department for Culture, Media and Sport (DCMS) proposed data protection reforms in its consultation which closed on 19 November 2021. The primary objective of the consultation was to seek views on the proposals to reduce the burden data protection places on businesses. In addition, the government sought views on how Article 22 of the UK GDPR should be interpreted in the context of artificial intelligence (AI) in several areas, including where it related to automated decision-making.
We are also expecting to see updated data protection and employment practices guidance in 2022 from the Information Commissioner’s Office (ICO). The new guidance will replace the ICO’s employment practices code, supplementary guidance and the quick guide, which have not been updated since the Data Protection Act 2018 came into force. The new guidance will cover topics including recruitment and selection, employment records, monitoring of workers, and information about workers’ health.
There are also a number of potential developments in employment law which we may see in 2022 as and when “Parliamentary time allows”. These include:
Confidentiality and non-disclosure agreements
it is anticipated that the legislation will curb the use of NDA provisions in employment contracts and settlement agreements alongside a requirement for independent legal advice to be provided to individuals asked to sign an NDA.
Extending redundancy protection for women and new parents
On 21 June 2021, the Pregnancy and Maternity (Redundancy Protection) Bill was reintroduced to Parliament for a second time. The second reading of this Private Members’ Bill is scheduled for 18 March 2022. If passed, the Bill will prohibit redundancy during pregnancy and maternity leave and for six months after the end of the pregnancy or maternity leave, except in specified circumstances
Tipping, gratuities, cover and service charges
Legislation in the Employment Bill that will see tips retained by hospitality staff in their entirety, except deductions required by tax law. Employers will also be required to distribute tips in a fair and transparent way, according to a published policy.
Neonatal leave and pay
The introduction of statutory neonatal leave and pay for up to 12 weeks for parents of babies requiring neonatal care.
Leave for unpaid carers
introducing a right for unpaid carers to take up to a week of unpaid leave per year. There is no scheduled timetable for the introduction of this right; it will progress when Parliamentary time allows.