What employment law developments can we expect in 2022… and beyond?
Many of us are entering the New Year hoping for a change in the number of Covid cases and restrictions, but what other (more employment law related changes) can we expect to see? Whilst there has been delay in some developments due the pandemic, we have set out some of the key employment law headlines that we expect to see in 2022 below.
On 9 September 2021, a six-week consultation was carried out by the Department of Health and Social Care regarding mandatory vaccinations for NHS staff. Since then, the Government has announced its proposal to introduce mandatory vaccinations for health and care (i.e. front line) workers.
On 6 January 2022, Parliament approved the instrument implementing the mandatory vaccinations for health and care workers. The instrument will result in the Government making a further amendment to the (confusingly named) Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 with effect from 1 April 2022. This will require health and social care workers in patient and service user face-to-face roles to be vaccinated, unless exempt. We are awaiting further guidance on the regulations and there is a judicial review regarding the lawfulness of this amendment pending. Therefore there will no doubt be further updates on this as 2022 gets fully underway and we will keep you updated.
Mandatory vaccination requirements for care home workers are already in place and further details can be found in our previous article (here).
Workplace sexual harassment
On 21 July 2021, the Government published its response to the 2019 consultation on workplace sexual harassment. The response confirmed a new duty for employers to proactively prevent sexual harassment, including harassment perpetrated by third parties such as customers, contractors and suppliers. The duty will come into force when Parliamentary time allows.
The Government is also looking at whether to extend the time limits for bringing any claim under the Equality Act 2010 from the current three months to six months. However, it has not yet committed to making any changes.
New right to carer’s leave
On 23 September 2021 the Government responded to its consultation on carer's leave. The response confirms who is eligible for carer's leave, what the leave can be taken for and how the leave can be taken. In particular, the Government committed to introducing a right for unpaid carers to take up to a week (5 working days) of unpaid leave per year and confirmed that it will introduce this entitlement to carer's leave as a day one right for employees.
The Government has also announced its intention to protect those taking carer's leave from detriment and has said that dismissals for reasons connected with exercising the right to carer's leave will be automatically unfair.
Employees will be required to give notice that is at least twice the length of the time being requested as leave, plus one day. The legislation will come into force when Parliamentary time allows.
Neonatal leave and pay
On 16 March 2020, the Government responded to its consultation on neonatal care leave, proposing the introduction of statutory neonatal leave and pay for up to 12 weeks for parents of babies requiring neonatal care.
Parents will have 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. Those who qualify (i.e. employees with at least 26 weeks’ service and earnings above the minimum pay threshold) will also be entitled to receive pay for the neonatal leave period at a statutory rate.
Right to request flexible working
In early 2021, with the pandemic as a likely catalyst, CIPD launched a campaign to make flexible working a day one right for employees. With an estimated one third of businesses already implementing flexible working from the first day of employment, some take the view that current legislation is behind the curve. On 23 September 2021, the Department for Business, Energy and Industrial Strategy responded to these calls and launched a consultation into a review of the Regulations. We wrote about the consultation in October here.
The consultation has now concluded and makes it clear that while the Government’s ambition is to make flexible working the default position in the workplace, it is not considered practical or desirable to introduce an automatic right for employees to work flexibly. As such, the proposals include a number of measures to broaden the scope of the right, while retaining elements of the current system, such as the statutory business reasons for refusing a flexible working request (although these may be subject to some change).
Right to disconnect?
The right to disconnect is a principle, which enforces the idea that employees should not be expected to work (including responding to emails and calls) outside their "standard hours of work". France, Germany and Italy have already implemented laws and policies surrounding the right to disconnect, recognising that, with increased technologies, this has become crucial. Canada is currently in the process of investigating a similar policy and it is being discussed by the Scottish Government in relation to their own employees. We speak more about the right to disconnect here.
Following research about the significant amount of hidden overtime while working from home during the pandemic, there have also been calls for the UK Government to introduce a "right to disconnect". There is nothing as yet to suggest such a policy will be implemented in the UK, but with an increase in remote working caused by the pandemic, Ministers are currently being urged to tackle this issue.
Confidentiality and non-disclosure agreements
In July 2019, the Government published its proposals to prevent the misuse of confidentiality clauses and non-disclosure agreements in the settlement of discrimination complaints.
Whilst the Government was clear that such clauses and agreements can serve a purpose in both employment contracts and settlement, it also confirmed that it proposed implementing legislation to govern their use, as well as introducing a requirement for independent legal advice to be provided to individuals asked to sign a non-disclosure agreement.
Extending redundancy protection for women and new parents
On 21 June 2021, following the Government's response to a Women and Equalities Committee report on 14 May 2021, the Pregnancy and Maternity (Redundancy Protection) Bill was reintroduced to Parliament for the second time.
The Bill proposed to prohibit redundancy during pregnancy and maternity leave and for six months thereafter, except for in limited circumstances, and will also apply to those taking adoption and shared parental leave.
The second reading of this Bill is scheduled for 18 March 2022.
In December 2019, a new Employment Bill was announced in the Queen’s Speech, but limited developments have been made since then.
It is anticipated that the Employment Bill will be published at some point in 2022. The measures expected to be included in the Bill are wide-ranging and will include some of those highlighted above, such as the right to neonatal leave and pay and the right to unpaid leave for carers.
Timescales for the measures in the Bill to take effect are not yet confirmed.
Harpur Trust v Brazel  I.C.R. 584
On 9 November 2021, the Supreme Court heard the case of Harpur Trust v Brazel. The key issue in this claim was in relation to the calculation of holiday pay for term-time workers in the education sector.
All term-time only workers have a statutory right to a minimum of 5.6 weeks' paid annual leave. Term time salaries are pro-rated to reflect the long school holidays. There are various ways employers calculate holiday pay for such workers.
One approach is to say that a worker accrues holiday pay at the rate of 12.07% of hours worked (12.07% being reached by dividing 5.6 (full-time equivalent) by 46.4 (the total number of weeks in a year less the 5.6 weeks’ holiday)).
An alternative approach is to base holiday pay on the proportion of the number of weeks in the holiday year that the individual has actually worked. On this basis, holiday pay would be paid at a rate of 17.5% of hours worked over a year (17.5% being reached by dividing 5.6 (full-time equivalent) by 32 (the total number of weeks in a year during term time)).
Previously, the Employment Appeal Tribunal held that term-time workers have a right to option (2) above. This has huge implications on the education sector, so the Supreme Court judgment is highly anticipated in the hope it will provide further clarity on the appropriate holiday pay calculation.
Forstater v CGD Europe & others UKEAT/0105/20/JOJ
The Forstater case, which reached the Employment Appeal Tribunal, received unparalleled attention for the complex issues it raised. Ms Forstater had a contract as a visiting fellow with CGD. She engaged in debates over Twitter about gender identity issues, expressing her views on the topic. She holds the belief that sex is biologically unchangeable. Whilst a person can identify as another sex and change their legal sex, Ms Forstater does not believe that this changes their actual, biological sex.
Colleagues of Ms Forstater complained about her comments on Twitter. An investigation ensued, following which Forstater's contract with CGD was not renewed. Forstater brought a claim in the Employment Tribunal, claiming that her beliefs constituted philosophical beliefs capable of protection under the Equality Act and, as such, the non-renewal of her contract amounted to discrimination. A preliminary issue to her claim was whether her beliefs were capable of protection under the Equality Act 2010.
The Employment Appeal Tribunal commented that "only the gravest forms of hate speech", which invite violence or hatred, would fail to be "worthy of respect in a democratic society", such as Nazism or similar. As a result, Forstater's gender critical beliefs which, whilst causing offence to some, did not seek to destroy the rights of trans persons and were capable of protection under the Equality Act.
The claim is due to be heard for a full merit hearing in March 2022.