2021 saw the Covid-19 pandemic overshadowing and delaying most developments in the employment landscape and although the pandemic will no doubt continue to be a key feature in 2022 we are pleased to see that a number of employment law changes are back on the agenda this year. We highlight here some of the key employment law developments we are likely to see in 2022:
Flexible working
The pandemic has unquestionably acted as a catalyst for flexible working. The government consultation on making flexible working the “default position” sets out a number of proposals – one being that flexible working should be a right from day one. We should highlight that the proposals do not introduce an automatic right for employees to work flexibly. Instead, the proposals include measures to widen the scope of the existing right to request flexible working, while retaining the basic framework of conversation between employer and employee about how to balance the needs of the business with those of the employee. However, we may see a change to the current statutory business reasons for refusing a flexible working request. The consultation closed at the end of 2021 and we are unlikely to see a response from the government until late in 2022.
Some developing themes which employers may continue to face in 2022 include requests from employees to work flexibly from abroad and you may find Marguerite Perin’s webinar on hybrid working helpful as it highlights some of the key issues to consider in such circumstances.
Vaccinations at work
On 1 April 2022 new regulations will come into force making COVID-19 vaccinations a requirement for health and social care workers in a face-to-face role. It is unclear how employers in this sector will deal with unvaccinated employees, whether consultation with unvaccinated employees is necessary where there are large-scale dismissals and whether redeployment will be possible. Employers in other sectors, who are planning to introduce mandatory vaccinations for new and/or existing staff, should re-consider whether such measures are strictly necessary. Employers operating in sectors which are not currently covered by the government’s mandatory vaccinations requirements, could potentially face the risk of unfair dismissal and discrimination claims if employees are dismissed for refusing to be vaccinated and dismissals cannot be justified as a proportionate means of achieving a legitimate aim.
Statutory rates of pay
The Department for Work and Pensions has published its proposed increases to the statutory payments which are expected to apply from April 2022. In particular:
- Statutory sick pay will increase to £99.35 per week.
- Statutory maternity, paternity, adoption and shared parental pay together with maternity allowance will increase to £156.66 per week.
Increases usually come into force on the first Sunday in April, which would be 3 April 2022.
National Minimum Wage, National Living Wage and National Insurance Contributions (NICs)
From 1 April 2022, the National Living Wage for workers aged 23 and over will rise from £8.91 to £9.50 per hour.
The National Minimum Wage rates will increase:
- 21 – 22 years old: £9.18.
- 18 – 20 years old: £6.83.
- 16 – 17 years old: £4.81.
- Apprentice rate: £4.81.
- Accommodation offset: £8.70.
National Insurance Contributions will rise by 1.25% for most workers from 6 April 2022.
Holidays
There will be an extra public holiday in 2022 (Friday 3 June) 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.
Whistleblowing
Most EU member states are expected to implement the EU whistleblowing directive in 2022. Although the directive does not apply to the UK it is likely to influence best practice here. A key feature of the directive is the requirement to provide feedback to whistleblowers within set time periods.
In the UK, BEIS has announced that it will review whistleblowing legislation although the scope of the review has not yet been confirmed. BEIS has advised that it is planning to introduce a single body to enforce workers’ rights, including whistle-blower protection, as part of the forthcoming employment Bill.
Gender pay gap
By April 2022, the government should have reviewed the gender pay gap regulations to assess the extent to which the reporting requirement achieved the objectives of the regulations, whether the objectives remain appropriate and whether any unnecessary burden is placed on employers. Meanwhile, the deadlines for Employers to report on gender pay gap within their organisations is expected to return to normal this year (they were postponed in 2021).
Data protection
Several data protection developments are likely to impact employment practitioners in 2022. The Department for Culture, Media and Sport (DCMS) proposed data protection reforms in its consultation which closed on 19 November 2021. The primary objective of the consultation was to seek views on the proposals to reduce the burden data protection places on businesses.
We are expecting to see updated data protection and employment practices guidance in 2022 from the Information Commissioner’s Office (ICO), following a call for views which ran until 28 October 2021. The new guidance will finally replace the ICO’s current code and guides which have not been updated since the Data Protection Act 2018 came into force. The new guidance will cover topics including recruitment and selection, employment records, monitoring of workers, and information about workers’ health.
Extending redundancy protection for women and new parents
A second reading of the Pregnancy and Maternity (Redundancy Protection) Bill is scheduled for 18 March 2022. If passed, the Bill will prohibit redundancy during pregnancy and maternity leave and for six months after the end of the pregnancy or maternity leave, except in certain circumstances. The government has reiterated their intention to progress the redundancy protection for pregnant women and new parents as part of the Employment Bill “when Parliamentary time allows”.
Post-termination non-compete clauses
The consultation on post-termination non-compete clauses in employment contracts, which closed on 26 February 2021, invited views on proposals for employers to continue paying compensation to employees for the duration of a post-termination non-compete clause. The proposals also requested views on requiring employers to confirm in writing to employees the exact terms of a non-compete clause before the employment commences and introducing a statutory limit on the length of non-compete clauses, or banning the use of post-termination non-compete clauses altogether. The government has not yet reported on the results of the consultation.
Extending ban on exclusivity clauses
A consultation on measures to extend the ban on exclusivity clauses in employment contracts to cover those earning under the Lower Earnings Limit, currently £120 a week. This would prevent employers from contractually restricting low earning employees from working for other employers. This consultation, which was launched in response to the impact of the COVID-19 pandemic on low earners, closed on 26 February 2021 and there is not currently a timetable for the next developments.
The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.
© Miller Rosenfalck LLP, January 2022
