Employment Law – What’s ahead in 2022?

Whilst the pandemic continues to delay the progress of many areas of employment law, there are still a number of key changes expected in 2022.  It is clear that working from home, hybrid working, Covid-19 vaccinations and cases involving the furlough scheme are going to continue to hit the employment law headlines.  However, we have set out below a summary of the other key issues that employers need to be aware of in the coming months.

National living wage (“NLW”) and national minimum wage (“NMW”)

The following new rates will take effect from 6 April 2022:

– NLW for workers aged 23 and over – from £8.91 to £9.50 per hour.

– NMW will increase as follows:

– for ages 21 and 22 – from £8.36 to £9.18 per hour;

– for ages 18 to 20 – from £6.56 to £6.83 per hour; and

– for ages 16 and 17 – from £4.62 to £4.81 per hour.

– Apprentice rate will increase from £4.30 to £4.81 per hour.

Sick Pay

The temporary changes to the self-certification requirements for the receipt of statutory sick pay, which came into force in December 2021, are due to end on 26 January 2022.  In the meantime, employers may well start to consider whether to amend their sick pay policies to mitigate the effects of high levels of staff absences brought about by the pandemic.

Flexible Working

With flexible and hybrid working now a central issue for the workplace, employers will be interested in the government’s response to its consultation on making flexible working the “default” position.  The consultation closed in December 2021 and included five proposals intended to broaden the scope of the flexible working regime – including making the right to request flexible working a day one right.  We await the response with interest although it is unlikely that we will see it until the latter half of 2022.

Holiday Pay

On 9 November 2021, the Supreme Court heard the case of Harpur Trust v Brazel. The Court of Appeal had previously decided in this case that permanent “part-year workers” (i.e. those working only part of the year, such as during school terms) should not have their annual leave pro-rated to reflect the fact that they do not work throughout the year.  We await the decision with interest as it may lead to further similar claims being brought by part-time employees.

We also await the Court of Appeal decision in Smith v Pimlico Plumbers Ltd, which will decide whether the EAT was correct to find (relying on the earlier ECJ decision in King v Sash Window Workshop) that a worker should not be entitled to carry over untaken annual leave where the worker was permitted to take leave that was unpaid.

Gender pay gap reporting

Last year, the time limit for relevant employers to publish their annual gender pay gap report was extended by six months to 5 October 2021 due to the pandemic.  We expect the deadlines to revert to normal this year, namely:

– 4 April 2022 (with a snapshot date of 5 April 2021) for private sector employers; and

– 30 March 2022 (with a snapshot date of 31 March 2021) for public sector employers.

By April 2022, which is the five year anniversary of the gender pay gap regulations coming into force, the government must also have reviewed those regulations (including assessing their effect, their objectives and whether they place unnecessary burden on employers).

Ethnicity pay gap reporting

The Government consulted on the possible use of mandatory ethnicity pay gap reporting back in 2018 and has yet to publish a formal response.  It remains to be seen whether 2022 will see the introduction of this new obligation.  In the meantime, many employers are already collecting and analysing their ethnicity pay data on a voluntary basis as part of their commitment to equality and diversity.

Duty to Prevent Sexual Harassment

A new duty will be introduced to employers to prevent sexual and third-party harassment in the workplace.  This is likely to include a defence where an employer has taken “all reasonable steps” to prevent the harassment.  Legislation imposing the duty will be introduced “when Parliamentary time allows”.

Employment Bill

The long-awaited Employment Bill will also be introduced “when Parliamentary time allows”.  It includes provisions for neonatal leave and pay, carer’s leave, extending redundancy protection for pregnant women and new parents and legislation to control the use of NDAs in employment contracts and settlement agreements.

Human Rights Act

A consultation on replacing the Human Rights Act 1998 with a Bill of Rights was published in December 2021.  Many of the proposals included are seen as highly controversial but it still remains to be seen whether any of them will make it to the statute books.

If you need advice on any of these issues, please contact a member of our Employment team.