Last month we looked back at the key employment law developments of 2021. In this article, the second in this series of two, we look ahead to what we might expect from 2022 and beyond.
It is likely that the Covid-19 pandemic will continue to be one of the key issues for employers to contend with in 2022. As the Omicron variant continues to spread, employers will be looking at whether new restrictions could be imposed, or whether any further support measures could be introduced, the Coronavirus Job Retention Scheme having closed at the end of September 2021. From the government’s stated position, such additional measures are looking less and less likely, however.
2022 has already seen a number of employers in the headlines including Wessex Water and the retailers Next and IKEA following the decision that employees who have not been vaccinated against Covid-19 and have no mitigating circumstances will no longer be entitled to contractual sick pay, if they are identified as a close contact of someone who tests positive for the virus - unvaccinated employees who test positive themselves will still be entitled to contractual sick pay. Reportedly other employers are considering taking similar action, and this could well be a significant issue for employers in 2022.
From 1 April, vaccines will be mandatory for health and social care workers who have face-to-face contact with patients and service users. Mandatory testing and vaccination of staff is also likely to continue to be a key consideration for employers throughout 2022.
Moving away from Covid-19, 2021 saw several government consultations and responses that could pave the way for new legislation in 2022.
The government’s response to its 2019 consultation on workplace sexual harassment confirms 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).
Although there is no firm implementation date, the government has stated that the duty on employers to prevent sexual harassment in the workplace will be introduced "as soon as" parliamentary time allows, and workplace protections against third party harassment will be introduced “when” parliamentary time allows (perhaps suggesting that the former will happen before the latter). It will be interesting to see whether this will go further than the existing defence under section 109(4) of the EA for employers who have taken “all reasonable steps” to prevent the harassment.
The Government has also said it will “look closely” at extending the three month time limit for all claims brought under the EA, with a probable extension to six months. Again, there is no timeframe for any such change, and its introduction in 2022 may be unlikely.
In December 2021, the Minister for Disabled People launched a consultation on disability workforce reporting which had been promised as part of the National Disability Strategy published in July 2021. The consultation 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. The consultation closes on 25 March 2022 and a response is due to be published by 17 June 2022.
A consultation document was published in September 2021 proposing various reforms to the existing right to request flexible working. The proposals do not extend to an automatic right for employees to work flexibly but they do 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).
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, whilst the government response is awaited, it is unlikely that any changes will take place in the next 12 months.
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.
Again, this right is to be brought forward "when Parliamentary time allows”, although it is likely to be implemented at the same time as the proposals to make the right to request flexible working available to all employees.
In December 2021, the government launched a consultation seeking views on its proposals to revise the Human Rights Act and replace it with a Bill of Rights, which the government considers will restore a proper balance between the rights of individuals, personal responsibility and the wider public interest. The government has stated that it intends to make such changes during this Parliament. The consultation will close in March 2022.
The government's consultation on measures to reform post-termination non-compete clauses in employment contracts closed in February 2021.
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. Currently, exclusivity clauses are only banned from zero hours contracts. The intention of this proposal is to allow low-income workers who are not able to secure the number of hours they would like from their current employer to seek additional work elsewhere.
The government’s response to both these consultations is awaited.
A number of the above changes were expected to be covered by the Employment Bill, which has been awaited for some time. On 23 March 2021, the government confirmed that the Employment Bill will not be introduced in this parliamentary session and the Queen’s Speech delivered on 11 May 2021 made no mention of the Employment Bill. It therefore remains to be seen whether there will be any progress with the Bill in 2022. Among other things the Bill will cover:
One of the most eagerly awaited judgments in 2022 will be the decision in Harpur Trust v Brazel, which was heard by the Supreme Court in November 2021. In this case, which concerns the calculation of holiday pay for atypical workers, the Court of Appeal overturned an employment tribunal’s decision that a term time-only worker should have their annual leave entitlement capped at 12.07% of annualised hours.
The Working Time Regulations 1998 (the Regulations) grant a worker on a permanent contract, engaged for the whole year, an entitlement to 5.6 weeks’ holiday and to be paid a week's pay for each week of holiday, calculated under the formula in the ERA 1996. In this case, this meant that Ms Brazel’s holiday pay worked out as 17.5% of her working pay, giving her an advantage over comparable workers. The Supreme Court’s decision will be awaited with interest by all employers who regularly employ seasonal or part-year workers.
In another holiday pay case, 2022 will see the handing down of the Court of Appeal’s judgment in Smith v Pimlico Plumbers. This case was one of a long line of high-profile worker status cases, culminating in last year’s Uber judgment.
Here, as Mr Smith won his case that he was a worker and therefore entitled to holiday pay, the issue turned to how much holiday pay he was owed. The Employment Appeal Tribunal (EAT) found that employers are only required to make a payment for unpaid holiday pay where the worker has taken a period of unpaid leave. Where, as in Mr Smith’s case, no leave has been taken, there is no potential liability in respect of accrued but untaken holiday.
This decision significantly limits the scope of the earlier European Court of Justice decision in King v Sash Windows. Given the direction of travel of worker status cases, there are likely to be many workers who believe they have a claim for accrued holiday pay, and it will be interesting to see whether the Court of Appeal follows the EAT’s decision and limits the value of these potentially expensive claims.
In other case law developments, the EAT will give its decision in Mackereth v Department for Work and Pensions and another. Mr Mackareth, a doctor, has appealed against the Employment Tribunal’s decision that he was not discriminated against on the grounds of religion or belief for refusing to address transgender patients by their chosen pronoun when carrying out health assessments.
In January the Court of Appeal will hear an appeal in the case of Angard Staffing Solutions v Kocur and others. In this case the EAT found that a worker who had an open-ended contract of employment with an agency that only ever supplied workers to one end user was nonetheless supplied to work "temporarily" for that end user. Therefore the worker was an “agency worker" for the purposes of regulation 3(1) of the Agency Workers Regulations 2010 (AWR), and was not an employee of the end user. The Court of Appeal will also consider the EAT’s finding that regulation 13 of the AWR does not provide agency workers with a right to be entitled to apply, and be considered, for relevant vacancies with a hirer or to work the same shift lengths as comparable directly-recruited employees.
We are also likely to see many more claims arising out of the Covid-19 pandemic.
Finally, employees will 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 moved from the usual Monday to Thursday 2 June to give workers a four day weekend. Employees may wish 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 offer the additional day, employers should ensure that an employee’s leave entitlement is clearly communicated, particularly if this additional bank holiday will not be offered.
For further information on how these issues might affect your organisation, please contact Paul Mander or your usual Penningtons Manches Cooper contact.