Although the COVID-19 pandemic continues to dominate employer’s time as we enter 2022, businesses can still expect legislative and case law developments across a broad spectrum of employment law as the year progresses. 

Menopause in the Workplace

The menopause and the impact this has in the workplace has been a very topical issue throughout 2021. In July, the House of Commons Women and Equalities Committee launched an enquiry into existing discrimination legislation and working practices around the menopause, which we contributed to.

Employment Tribunal claims referencing the menopause have tripled in the last three years and many more employers are becoming alive to the issue. We are assisting clients with policies and training aimed at supporting employees who are going through the menopause and will focus upon the topic as part of our ongoing reproductive health campaign.

Statutory Rates of Pay

The DWP has already published its proposed increases to statutory benefit payments and National Minimum Wage rates which will come into effect from April 2022.

Statutory Sick Pay is to increase to £99.35 per week, and statutory maternity, paternity, adoption and shared parental pay together with maternity allowance will increase to £156.66 per week.

From 1 April 2022, the National Living Wage for workers aged 23 and over will rise from £8.91 to £9.50 and National Minimum Wage rates will also rise:

• 21 – 22 years old - £9.18
• 18 – 20 years old - £6.83
• 16 – 17 years old - £4.81
• Apprentice rate - £4.81

Employment Bill

Perhaps unsurprisingly, the Employment Bill which was initially mentioned in the 2019 Queen’s Speech, did not progress through Parliament in 2021. The Bill is timetabled for attention this year, however, this will only occur ‘when parliamentary time allows’ - if and when this occurs remains to be seen.

The Bill’s main purpose is to build upon existing employment law with measures that protect those in low-paid work and the gig economy and seeks to introduce many of the recommendations made by the 2018 Good Work Plan such as:

• The establishment of a single labour market enforcement agency to better ensure the protection of vulnerable workers;
• Statutory parental neonatal leave and pay of up to 12 weeks where a baby requires neonatal care;
• The right to request a more predictable and stable contract after 26 weeks service for those with variable and unpredictable hours;
• A right to one week of unpaid carers’ leave;
• A right to reasonable notice of working hours and compensation for short notice shift cancellation; and
• Tips and service charges being paid to workers in full

Sexual Harassment in the Workplace

In July 2021 the government published its response to the consultation on sexual harassment in the workplace. This confirmed that the government intends to introduce legislation which will place a duty on employers to prevent sexual harassment and also provide new protection from harassment by third parties, such as customers or clients. To support this, we are expecting a new statutory Code of Practice and guidance for employers.

Although no definitive timescale has been given as to when these new duties will come into effect, it is anticipated that draft legislation will be produced in 2022. In the meantime, employers may with to address their minds to what steps they can take to discourage such behaviour, as was discussed in our previous blog on the subject. 

Gender Pay Gap Reporting

Organisations with over 250 employees are obliged to publish a yearly report outlining data on their gender pay gap. Due to the pandemic the deadline for reporting was extended by six months to 5 October 2021.

As it currently stands, the 2022 deadlines are set to revert to the normal timescales. For public sector employees, the deadline is 30 March 2022, providing a snapshot of the workforce as of 31 March 2021. For private sector employees and voluntary organisations, the deadline is 4 April 2022, with a snapshot date of 5 April 2021.

The detailed rules governing gender pay gap reporting are set to be reviewed in 2022, however, any changes are likely to be subject to consultation before being introduced. These changes may see the introduction of ethnicity pay gap reporting.

COVID-19 Case Law

The unprecedented and fast paced changes that were introduced in response to the COVID-19 pandemic meant that many employers had to make decisions based upon untested principles.

As the Tribunal system begins to return to normal, we are inevitably seeing more cases being heard arising from situations that happened during the pandemic. We will continue to report on cases as they are published, however, most recently a Tribunal decided that the fear of catching COVID-19 did not amount to a philosophical belief that would be protected under the Equality Act 2010. 

Flexible Working Rights

The government's consultation on whether the right to flexible working should be a right from day one of the employment relationship closed on 1 December 2021. The consultation sought views on how to make flexible working the ‘default position’, which was a manifesto commitment from the government back in 2019.

It is anticipated that any changes will be limited to a right to request, with a view to encouraging discussions between the parties as to how a flexible working arrangement may work. Employers would retain the right to turn down requests where appropriate. 

As 2022 progresses, we will continue to report and comment upon the expected employment law developments as they occur. If you have any questions in relation to the anticipated issues, please contact a member of our Employment Team.