Our Employment Team summarise below the main employment law developments which might be of interest to employers and what to look out for in the coming months.
Whilst we are reluctant to mention COVID, the article would be incomplete without some mention, as it has affected the legal landscape and the way in which we work and it has delayed some of the key developments which were anticipated last year.
Hot Topics
1. Flexible Working
The pandemic has shifted the issue of flexible working with many employers introducing a policy on hybrid working. The Government recognised that people were working more flexibly due to the pandemic and last year consulted on making flexible working the default position. It set out proposals to change the current framework, including making flexible working a day one right, unless the employer had a good reason not to allow it, and making changes, if necessary, to the eight business reasons for refusing a flexible working request. Consultation closed on 1 December, although it is unlikely that we will have a response from the Government until the latter half of this year.
2. Vaccination at work
On 1 April 2022, regulations will come into force making vaccination against COVID-19 a mandatory requirement for health and social care workers who work in a face-to-face role, unless they are medically exempted. Whilst employers in other sectors are required to maintain a safe workplace, they may have difficulty in requiring new or existing staff to be mandatorily vaccinated. This newsletter also features a separate article about mandatory vaccinations which can be found here.
3. Sexual harassment – introduction of mandatory duty
In July 2019, the Government Equalities Office launched a consultation on how best to tackle sexual harassment in the workplace. On 21 July 2021, the Government published its response and confirmed that it would introduce a new duty for employers to prevent sexual and third-party harassment in the workplace. The new duty will come into force as soon as parliamentary time allows. In addition, the Government confirmed that it would support the Equality and Human Rights Commission to develop a statutory Code of Practice on harassment in the workplace. It believes this will help employers understand their existing duties and whether they have taken “all reasonable steps” to prevent harassment.
The Government will consider the proposal to extend the time limits for claims under the Equality Act 2020 (EqA). A new time limit of six months (as opposed to the current three months) is likely to be the more appropriate. Any extension to the time limit would apply to all claims under the EqA, not just harassment.
The Government has not provided timescales on any of the above and it is unlikely we will see a rapid change in the law in this area, but it is one to keep an eye out for.
4. Gender pay gap reporting
By April 2022, the Government must review the Gender Pay Gap Regulations and publish a report on whether the reporting requirement achieves the objectives of the Regulations (principally to reduce the gender pay gap), whether that objective remains appropriate, or it imposes a necessary burden on employers.
Potential Developments to Look Out For
1. Employment Bill
In December 2019 the Queen’s Speech announced the Government’s intention of introducing a new Employment Bill, which would include changes anticipated by the Good Work Plan. On 23 March 2021, the Government confirmed the Bill would not be introduced in this parliamentary session but would be introduced when parliamentary time allowed. In the absence of any commitment on progress employers have no further information on its implementation and the Queen’s Speech delivered on 11 May 2021 made no mention of it. However, all proposed changes are still “alive”, and the Government has blamed COVID for the lack of progress. The Employment Bill covers, amongst other things:
- Extending redundancy protection for women and new parents: currently if a woman who is on maternity leave is selected for redundancy, she must be given priority over other redundant employees when the employer offers suitable alternative employment. The Government has announced its intention to extend this right to women who have notified their employer that they are pregnant and for those who have returned from maternity leave in the previous six months. In a related development, a Private Member’s Bill, the Pregnancy and Maternity (Redundancy Protection) Bill was introduced on 21 May 2019 which seeks to prohibit employers from making employees redundant during pregnancy, maternity leave and for six months after the end of maternity leave, save where the employer ceases to carry on its business in the location where the pregnant mother or new mother is employed. It was reintroduced to Parliament on 21 June 2021 and is scheduled for its second reading on 18 March 2022. The Bill if passed goes considerably further than the Government’s own proposals.
- Tips to go to workers in full: another measure will be the requirement for employers to pass all tips and service charges to workers in full, except deductions required by tax law. Employers will also be required to distribute tips in a fair and transparent way, supported by a new statutory Code of Practice.
- Neonatal leave and pay: the introduction of statutory neonatal leave and pay for up to 12 weeks for parents of babies requiring neonatal care.
- Leave for unpaid carers: a right for unpaid carers to take up to a week of unpaid leave per year.
2. Ethnicity pay gap reporting
On 11 October 2018, the Government launched a series of measures to alleviate the difficulties faced by ethnic minorities in the workplace, including a consultation on ethnic pay gap reporting akin to that of gender pay gap reporting. The Government is still considering mandatory ethnic pay gap reporting.
3. Disability workforce reporting
On 16 December 2021 the Government launched a consultation on disability workforce reporting for large employers with 250 or more employees. Through the consultation the Government hopes to glean information on current reporting practices, the case for and against implementing a mandatory approach and how a mandated approach might be implemented, and whether there are alternative approaches which may be taken to increase transparency and inclusivity. Consultation will close on 22 March 2022 and a response is due to be published by 17 June 2022.
4. Post-termination non-compete clauses
On 4 December 2020, the Department for Business, Energy and Industrial Strategy (BEIS) opened consultation on measures to reform post termination non-compete clauses in employment contracts. It sought views on proposals requiring employers to pay compensation to employees for the duration of a post termination non-compete clause, requiring employers to provide written confirmation to employees before their employment commences on the exact terms of a non-compete clause, introducing a statutory limit on the length of non-compete clauses, or banning their use altogether. Consultation closed on 26 February 2021. Whilst the Government is yet to report on the results, it is our opinion that a ban on the use of non-compete clauses altogether is unlikely.
5. Extending the ban on exclusivity clauses
Another consultation was launched by BEIS on 4 December 2020, on measures to extend the ban on exclusivity clauses in employment contracts, to prevent employers from contractually restricting low paid employees (those earning under £120 per week) form working elsewhere. Again, consultation closed on 26 February 2021.
Case Law
Calculation of holiday for part-year workers
In our September 2019 newsletter we reported on the case of Harpur Trust v Brazel in which the Court of Appeal held that part-year workers (those working only part of the year, e.g. during school terms) employed under permanent contracts should receive 5.6 weeks’ annual leave calculated using the average rate of pay over the previous 12-week period, rather than calculated on a pro-rata basis. ACAS guidance at the time, and on which Harpur Trust had relied, was that the 5.6 weeks statutory annual leave was equivalent to 12.07% of hours worked over the year.
Harpur Trust appealed and the case was heard by the Supreme Court on 9 November 2021. Judgment is awaited on whether part-year workers should have their annual leave entitlement capped at 12.07% of annualised hours. The Supreme Court judgment is eagerly anticipated in the hope it provides further clarity for employers.
The team will update you on any developments in our upcoming HR Breakfast Club events.
