Employment Changes

We are a month into 2022, the ‘Happy New Year’ comments have finally stopped, and our attentions are now focussing on what 2022 will bring, with Covid-19 still very much high on the agenda.

Whilst Covid may still be taking the centre stage, we can not forget that the world continues to spin, and employment law is still subject to change, with case law developments being made, on what seems to be a daily basis for HR Professionals.

Here we look at some of the changes scheduled for 2022, and so on:

Covid-19 developments

A key question for 2022 is whether more employers will implement the ‘no jab – no job’ or follow in the footsteps of some well recognised names, and stipulate ‘no vaccination – no sick pay’.

These approaches are currently under scrutiny and it may be some time before we understand any decisions reached by the Employment Tribunal’s, however, we can extract key details from any new decisions reached with cases currently going through the system, which may help us to reach our own decisions for the here and now. With the lasting effects of Covid I am sure further developments will be made with long-covid and the approaches taken by employers in supporting (or not supporting) their employees.

Flexible working

Originally promised in the 2019 Queen’s Speech, the Employment Bill – could finally be published in 2022 and is expected to include a new right to request flexible working from day one. Whilst this is not envisaged to cause too much disruption, as flexible working requests are encouraged to be considered at any stage, irrelevant of the length of service, this is an important factor for employers to understand as is a significant move in shifting greater rights to employees, as part of the overall Good Work Plan.

Good Work

The Employment Bill is also expected to progress the Good Work agenda, by introducing a new right for workers with variable hours to request a more stable and predictable contract after 26 weeks' service and, possibly, new rights to reasonable notice of working hours and compensation for short-notice shift cancellation.

Pay and holidays

There will be an extra public holiday in 2022 (Friday 3 June if you missed it) to mark the Queen’s Platinum Jubilee, and the late May bank holiday has been moved to Thursday 2 June to make a four-day weekend. It is important to understand if your employees have the contractual right to the additional bank holiday. Further details to help you determine what your contractual position is, can be explored here.

Holiday pay calculations are always a headache and an area that many employers still do not understand in full owing to the complexities and difficulties in making the correct calculations. To try and help make life a little simpler, feel free to read our guidance here.

Case Law – Significant Ruling:

A judgment has recently been received for the case ‘Smith v Pimlico Plumbers’ which concerned the extent of an employer’s liability for holiday backpay in circumstances where the individual was treated as self-employed but was subsequently found to be a worker with entitlement to paid holidays.

A ruling was very recently reached which determined that Smith was in time for making a claim (which had been one angle of defence) as he was “denied the opportunity to exercise the right to paid annual leave throughout his engagement with the respondent”. “The respondent could not discharge the relevant burden. The right did not therefore lapse but carried over and accumulated until termination of the contract, at which point Mr Smith was and remains entitled to a payment in respect of the unpaid leave.”

What does this mean for employers, or those who engage people on a self-employed basis?

Under tribunal rules, those seeking a claim should make a claim for any missed pay within three months of each holiday period. The Government also enacted a two-year backstop on holiday pay claims, because of concerns over the potential multi-billion-pound bills that employers might otherwise face for many years of underpaid holiday pay.

This decision has potentially opened the flood gates as indicates that where individuals are prevented from taking leave, the entitlement still remains and will continue to roll over during the term of the engagement, thus meaning potentially those making a claim have 3 months from the end of agreement/employment and claims can exceed the initial 2 year cut of period.

With the combination of this case and the proposed focus of the government’s Single Enforcement Body on holiday pay compliance, employers really need to focus on how they calculate holiday pay now, or else face what may be enormous holiday pay liabilities going back many years (Gulp - I know!!!).

The National Living Wage (for workers aged 23 and over) is set to rise to ￡9.50 an hour from April 2022, an increase of 6.6%. Adding to the ongoing pressure on wages, the social care levy will be introduced UK-wide from April 2022 and will be collected initially via a 1.25% increase in National Insurance Contributions. The Employment Bill may also introduce the long-awaited tips regulations governing how tips are to be distributed. There will, of course, be the usual uplifts to statutory rates and limits, including statutory sick pay and maternity pay, in April 2022.

Harassment

The government has promised to introduce a new proactive duty on employers to prevent sexual harassment in the workplace and to bring back laws making employers responsible for employees who are harassed by customers or other third parties. The upshot could be a step-change in how employers are required to manage the risks of harassment in a post #Metoo world.

Pay transparency

The detailed rules governing gender pay gap reporting are set to be reviewed in 2022. Changes could be on the cards but would probably be subject to consultation before being introduced, so I would nothing to worry about in the short term. In the meantime, the deadlines for submitting reports are expected to return to normal this year, having been extended in 2021 because of the pandemic.

Family rights - By August 2022, EU member states need to have implemented the EU work-life balance directive, which includes new baseline rights for carers and working parents. The UK does not need to implement this directive but has already 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’ carers leave each year to help them carry out their caring responsibilities, although this will be unpaid.

The Government has also promised a new right to 12 weeks paid neonatal leave for parents whose babies spend time in neonatal care units. The Government has also promised to improve redundancy protection for pregnant employees and maternity returners by giving them priority for alternative employment opportunities if made redundant, with similar protections for parents returning from adoption or shared parental leave. All of these new rights are expected to be included in the Employment Bill.

Other development

Non-Compete Clauses - Proposals for regulating non-compete clauses which may include regulations on implementing bans on “exclusivity clauses” in contracts for low-paid workers.

Single enforcement body - The primary intention is to defragment the current regime by combining the Employment Agency Standards Inspectorate, the Gangmasters and Labour Abuse Authority and HMRC’s National Minimum Wage Enforcement Team into one body. The idea is also to expand this new body’s remit into the enforcement of statutory sick pay, holiday pay for vulnerable workers and the regulation of umbrella companies, with other areas under consideration.? The Employment Bill will pave the way for its establishment, but it is likely to be some time before it is up and running.

How can we help?

After a relatively quiet 2021 (Covid-19 aside), 2022 looks likely to bring an increased number of changes to employment law, especially if the Employment Bill is finally published!

With all of these proposed changes in the pipeline, are you confident you can keep up to speed with how the changes will impact you, your business, and your employees? If the answer is ‘no’, feel free to contact our HR Advisory Service who will make sure you keep on the right side of the law and can highlight how any changes may impact your business in layman’s terms.?