On the employment horizon – 2022

The pandemic is still affecting all aspects of our lives and employment law is no exception.

Many changes that were expected in the last 12 months were inevitably delayed and many proposals are still without a timetable for the introduction.

Below are some of the key changes we anticipate over 2022.

Sexual harassment: The government plans to introduce a duty for employers to prevent sexual harassment and third-party harassment in the workplace “as soon as” Parliamentary time allows. A defence will be available if the employer has taken “all reasonable steps” to prevent the harassment taking place.

Carers leave: The government will introduce a new statutory right of up to one week of unpaid carer’s leave “when Parliamentary time allows”.

Employment Bill: this has been anticipated for some time and is expected to include provisions for:

• Tips left for workers to be retained by them in full.
• A single labour market enforcement agency, to better ensure that vulnerable workers are aware of and can exercise their rights.
• The right to request a more predictable and stable contract after 26 weeks’ service.
• Extending the period of redundancy protection for pregnant workers from the point an employee notifies their employer of their pregnancy, until 6 months after the end of their maternity leave.
• Introducing statutory leave and pay for up to 12 weeks for parents of babies requiring neonatal care.
• Making flexible working the default position unless an employer has a good reason. This will not introduce an automatic right for employees to work flexibly, but proposes to broaden the scope of the current right.
• Whilst the government accepts that confidentiality clauses can serve a legitimate purpose, it is likely that new measures will be introduced to limit/control the use of non-disclosure agreements made in employment contracts and settlement agreements.

As is becoming a common theme, this will Bill be published “when Parliamentary time allows”.

Gender pay reporting: The government should be reviewing the efficacy of the existing regulations by April 2022 (five years from the introduction), to assess the extent to which the reporting requirement is achieving the aims of the regulations. Given the impact of the pandemic, however, the review may be premature.

Human Rights Act: In December 2021 the Ministry of Justice published “Human Rights Act Reform: A Modern Bill of Rights” – this is a consultation on replacing the Human Rights Act with a Bill of Rights. Many of the proposals in the consultation are controversial, but there is a long way to go before changes will be made. The consultation closes in March 2022.

Disability workforce reporting: The government is consulting on disability workforce reporting for large employers with 250+ employees. The consultation closes on 25 March 2022.

Cases to watch:

• The holiday pay cases continue, with Smith v Pimlico Plumbers reaching the Court of Appeal on the issue of time limits for bringing a claim, where the holiday has been taken, but not paid. This differs from the cases where the worker has not taken leave at all because of the employer’s refusal to pay. The case was heard in the CA in December 2021, and a decision should be made early in 2022.
• In November 2021, the Supreme Court heard the case of Harpur Trust v Brazel on the issue of whether part-year workers should have their annual leave entitlement capped at 12.07% of annualised hours. The decision is expected in early 2022.
• The liability of an employer for the consequences of an employee’s practical joke that resulted in injury to an external contractor is being considered by the Court of Appeal. The lower court had found the employer was not vicariously liable for the injury as there wasn’t a sufficient connection between the employee’s role and the prank. The CA is due to give its ruling in Chell v Tarmac Cement and Lime in early 2022.

For more information, please contact Trevor Bettany.