Important changes in the field of employment law are on the horizon – these are our employment law points to look out for in 2022.
A new Employment Bill was announced in the 2019 Queen’s Speech. The Bill was delayed due to government capacity being focused on the COVID19 pandemic. However, the government has confirmed that the bill will be published ‘’when parliamentary time allows” and it is expected that this will be some time later this year. The usual changes to statutory rates of pay will of course be introduced and we await some important decisions on discrimination and holiday pay.
The much-awaited Employment Bill is expected to include, amongst other things:
- A new right to one week’s unpaid leave for unpaid carers – this will be a day one right. The leave may be taken in one block or individual days for caring purposes, such as personal and practical support, financial matters, personal or medical care.
- Extending redundancy protection for women and new parents – this will extend the “protected period” to pregnant women from the point they notify their employer that they are pregnant and until 6 months after a mother has returned to work. It will also apply to those taking adoption and shared parental leave in some way.
- Statutory neonatal leave and pay for parents whose babies require neonatal care – this will give parents of pre-term babies the right to take an additional week of leave for every week their baby is in neonatal care, up to a maximum of 12 weeks. It is expected to be available for those with 26 weeks’ service and who earn above the minimum pay threshold.
- The right to retain tips in full.
- Flexible working a day one right – thereby removing the requirement to have 26 weeks’ service before a request can be made. A consultation was run on this towards the end of last year and the response is still awaited.
- A new single enforcement body – to enforce breaches in relation to national minimum wage, modern slavery, employment agencies, statutory sick pay and holiday pay for vulnerable workers. The body will have new powers to tackle non-compliance, including civil penalties of up to £20,000 per worker for the breaches under the Gangmasters Licensing and Employment Agency Standards regimes.
- A new right for workers (including those on zero hours contracts and agency workers) to request a more predictable contract after 26 weeks’ continuous service – this measure is intended to provide more certainty about the number of hours or days they will be required to work to those working in the Gig economy.
- New duty to prevent workplace sexual harassment – and the reintroduction of protections for employees who are harassed by customers and clients (third parties). It is also proposed that the time limit be extended for bringing all claims under the Equality Act 2010. It is not known if this will be part of the Employment Bill or introduced elsewhere.
The Employment Appeal Tribunal (EAT) is due to hear two cases this year which consider the conflict between transgender rights and religious or gender critical beliefs (Mackereth v DWP and Higgs v Farmor’s School). The EAT decided last year in the case of Forstater v CGD Europe  IRLR 706 that a claimant’s belief that biological sex is immutable was protected under the Equality Act 2010. Dr Mackereth’s claim concerned his refusal to use patients’ chosen pronouns. Ms Higgs’ was dismissed following posts on social media that the school considered to be homophobic and transphobic.
With the increasing number of women in the workplace reaching the menopause, some estimated 4.5 million women, the issue of how to support such women has become increasingly important and cases are now bring brought successfully asserting that menopause symptoms constitute a disability and/or sex discrimination.
According to recent UK data, there were five employment tribunals referencing the claimant’s menopause in 2018, six in 2019 and 16 in 2020. There were 10 in the first six months of 2021 alone.
Cases such as Rooney Leicester City Council brought last year discussed the issue of whether menopausal symptoms can constitute a disability under the Equality Act 2010. Such cases also often give rise to allegations of sex discrimination and harassment. Whilst we are awaiting the outcome of the Women and Equalities Committee’s inquiry into menopause and the workplace, employers are advised to seriously consider what steps they can take to address the impact of the menopause on their workforce.
ACAS have published a useful Guide on supporting menopausal workers.
Ethnicity Pay Gap Reporting
This year we may see progress on ethnicity pay gap reporting. The long-awaited introduction of a mandatory ethnicity pay gap report would highlight this important and outstanding issue in equality in the workplace following the implementation of the gender pay gap reporting requirement back in 2017.
The Supreme Court is due to hand down a decision on holiday pay calculation Harper Trust v Brazel. The case is mainly relevant for ‘part-year’ workers (such as someone on a term-time only contract), but it demonstrates the complications of calculating holiday pay for workers with atypical patterns of work.
The recent case of Smith v Pimlico Plumbers also confirmed that a worker can carry over holiday irrespective of whether it was taken or not. In this case the worker had taken it but not been paid for it as the respondent had not recognised the individual as a worker.
Additional Bank Holiday
There will be an extra bank holiday this year to celebrate the Queen’s platinum jubilee. On account of this, the second May bank holiday will be moved to Thursday 2 June with the extra bank holiday taking place on Friday 3 June. According to the specific wording in contracts of employment, it may or may not be necessary for employers to give their staff an extra day’s paid holiday if, for example, the contract states that staff get “28 days inclusive of bank holidays”, or similar.
Increases to Statutory Payments Rates
|Statutory Payment Rates with effect from April 2022|
National Insurance Contributions
On 6 April 2022, National Insurance contributions for employers and employees will rise by 1.25%. This increase will fund health and social care and will be replaced in April 2023 by a separate health and social care levy (at which time, National Insurance contributions will revert to current levels).
Whilst the UK has left the EU Employers with EU branches should be aware of EU regulations due for implementation by Member States in 2022. New legislation will include measures such as giving workers a right to a written statement of employment terms and conditions, minimum levels of paternity and parental leave, and a new right to five working days carers’ leave each year.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.