Employment law developments in 2022
From Menzies Law
Employers can expect a busy year for employment law in 2022, so this Legal Eagle is somewhat longer than usual to flag-up key areas:
1.The Employment Bill
The Employment Bill may be published this year, paving the way for a number of new laws including:
- Changes to flexible working. Following a period of consultation, any new law is expected to include a new right to request flexible working from day one of employment
- Progression of the Good Work agenda, by introducing a new right for workers with variable hours to request a more ‘stable’/ ‘predictable’ contract after 26 weeks’ service. Also, potentially new rights to give employees reasonable notice of a change to working hours and compensation for short-notice shift cancellation.
- Harassment. The promise of a new ‘proactive’ duty on employers to prevent sexual harassment in the workplace puts the onus of responsibility on employers if employees are harassed by customers or other third parties. The Equality and Human Rights Commission may use this year to start a consultation process for its new Code of Practice on Harassment creating significant change in how employers are required to manage the risks of harassment.
- We may see the Bill create legislation on non-disclosure agreements (NDAs).
2. Pay and holidays
The Queen’s Platinum Jubilee gives us an extra public holiday (Friday 3 June). The late Monday May bank holiday has been moved to Thursday 2 June to create a four-day weekend.
Judgements in two major holiday pay cases are anticipated this year which may clarify some holiday pay rights.
From April the National Living Wage (for workers aged 23 and over) rises to £9.50 an hour, the social care levy will be introduced UK-wide (collected by an NI contribution rise of 1.25%) and there will be the usual uplifts to statutory rates and limits (including statutory sick pay and maternity pay).
3. Pandemic-related developments
Government appears reluctant to impose new restrictions but key is whether more employers will introduce mandatory vaccination / testing / Covid pass policies. More rulings are likely on the furlough scheme, whether anti-vaccination stance is a protected belief, and whistleblowing Covid-19 safety at work cases.
The first cases to reach court will involve events from the early days of the pandemic such as ‘no jab, no job’ policies some employers implemented. We might also see some cases coming to Tribunal this year on when Long Covid is a disability for equality law purposes.
4. Modern Slavery Act
The Modern Slavery Act is likely to be strengthened this year, implementing the plans announced in September 2020.
5. Pay Transparency - gender pay, ethnicity reporting, disability
We expect the rules governing gender pay gap (GPG) reporting to be reviewed in 2022. Expect a consultation process before any changes are made. We may also see movement on the introduction of Ethnicity Pay Reporting which has been debated for some time now. Voluntary reporting may 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.
6 Gender identity
Some of you will be following the Maya Forstater case where 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 highlighting the difficult balance between legal regulation of those people who hold ‘protected’ gender-critical beliefs and the unlawful and harassment of trans people.
7. Equal pay
The equal pay claims brought by store workers at supermarkets and other large retailers continue to progress through the courts. Rulings have confirmed that female store workers can compare themselves to male distribution depot workers. The focus now moves to whether the relevant types of work are of equal value and, if so, whether paying different rates for them is justified.
8. Family rights
Under the Government proposals, working carers will be able to take up to five days’ unpaid carer’s leave each year to help them with their caring responsibilities. The Employment Bill may see these cemented in law along with two more government promises:
- improved redundancy protection for pregnant employees and maternity returners with similar protection for parents returning from adoption or shared parental leave.
- a new right to 12 weeks’ paid neonatal leave for parents whose babies spend time in neonatal care units.