In this article we choose to move away from a focus on Covid-19 and the potential decisions around mandatory vaxinations and reduced sick pay entitlement for unvaccinated, and instead we spot light some of the 2021 government consultations that could pave the way for new legislation in 2022 and beyond.

Confirmed

Increased NICs

One of the key employment law updates in 2022, as recently announced, is that National Insurance Contributions will increase by 1.25% from April 2022 for employers and employees to raise funds for social care and the NHS. This increase will apply to class 1 NICs paid by employees and class 4 NICs paid by self-employed workers. Class 2 self-employed NICs and class 3 NICs, which are voluntary payments made to top-up state pension gaps, are not impacted by the levy. The levy will also not be taken from pension income.

Employer Guide to the new Health and Social Care NI Levy

Pending

Disability discrimination

In December 2021, the Minister for Disabled People launched a consultation on disability workforce reporting which aims to further explore disability workforce reporting for large employers with 250 or more employees. In particular, it will look at the possibility of mandatory reporting and whether a standardised approach to collecting disability workforce data should be adopted. We expect the response to be published by 17 June 2022.

Sexual harassment

Although we don’t yet have a timeline, the government confirmed that it will introduce a new duty for employers to prevent sexual harassment and third-party harassment in the workplace. It will also look closely at the possibility of extending the time limit for all claims under the Equality Act 2010 (the EA) which is currently limited to 3 months, most likely to 6 months.

Flexible working

In September 2021 a consultation document proposed various reforms to the existing right to request flexible working. The proposals include several measures to broaden the scope of the right, including making flexible working a “day one” right for employees (rather than a right that kicks in after 26 weeks).  Note this is right to request, not an automatic right for employees to work flexibly.

The consultation also considers whether changes need to be made to the eight business reasons for refusing a request, or to the administrative process underpinning the right. The consultation closed in December 2021 and, but it is thought unlikely that any changes will take place in the next 12 months.

Carer rights

The Government has confirmed that it will introduce a new statutory right of up to one week of unpaid carer’s leave per year from day one of employment for employees who need to care for a spouse, partner, civil partner, child, parent, household member or dependant.

It is anticipated that this would be implemented at the same time as the proposals to make the right to request flexible working available to all employees as set out above.

Post-termination restrictions and exclusivity clauses

The government’s consultation on measures to reform post-termination non-compete clauses in employment contracts closed in February 2021.  Currently, exclusivity clauses are only banned from zero hours contracts.

The consultation on measures to extend the ban on exclusivity clauses in employment contracts to cover those earning under the Lower Earnings Limit also closed in February 2021.  The intention of this proposal is to allow low-income workers to seek additional work elsewhere and especially where their hours for their own employer cannot be increased.

The government’s response to both these consultations is awaited.

Employment Bill

Many of you will know from my prior year posts that the new Employment Bill has been awaited for some time yet we have had no mention of it in 2021 so it is looking unlikely to be launched in 2022.  Among other things, when launched the Bill will cover:

  • the right for all workers to request a more predictable contract after 26 weeks’ service. For example, Penningtons Manches Cooper state “workers on a zero-hours contract would have the right to request a contract guaranteeing their usual hours, under a process similar to the current flexible working regime”;
  • a single labour market enforcement body, with increased powers and resources to help increase awareness of and access to rights for vulnerable workers;
  • a requirement on employers to pass on all tips and service charges to workers and for any distribution by employers to be undertaken on a fair and transparent basis;
  • extending redundancy protection for pregnant women and those on maternity leave; and
  • statutory paid leave for parents whose babies are in neonatal care.

Revised 2022 Bank holidays 

Many employees anticipate and welcome the additional bank holiday granted in celebration of the Queen’s Platinum Jubilee on Friday 3 June, with the late May bank holiday being delayed from the usual last Monday of May to Thursday 2 June to give workers a four-day weekend. Employers and employees are advised to check their contracts however, as if their contractual holiday entitlement is stated to be, for example, “28 days including bank holidays”, or “20 days plus 8 bank holidays”, then there will be no contractual entitlement to this additional day. Only where employees are entitled to a fixed number of days’ annual leave “plus bank holidays” will they be contractually entitled to the extra day’s leave. Whilst it is expected that the majority of employers will operate their discretion and pay the additional day of leave, employers should ensure that an employee’s leave entitlement is clearly communicated, particularly if this additional bank holiday will not be offered or will only be offered in exchange of another 2022 bank holiday.

 

If you would like any support in interpreting employment law, or reviewing and preparing compliance of your documentation ahead of time, please don’t hesitate to contact us.