What’s ahead for employment law in 2022

Several proposed employment law changes have taken a back seat during the pandemic. However, it is hoped that we will now get some clarity on these as we continue through the year.

Health and wellbeing and flexible working are likely to attract more attention now due to the new working arrangements and there continues to be discussions and support for increased reporting requirements for employers on matters such as ethnicity and disability.

Employment Bill and Good Work Plan

Following the Taylor Review, a raft of proposals was made to change employment law and working practices. In the Queen’s speech pre-pandemic, it was announced that the Government was seeking to introduce an Employment Bill covering many of these changes.

The changes include:

• The right to request a more predictable contract after 26 weeks of service, an extension to redundancy protection for expectant and new mothers (i.e. from the point the employee notifies the employer of her pregnancy to 6 months after her return to work),
• Extending the gap needed to break continuity of service from one week to four; and
• Flexible working becoming the default position. Unfortunately, the Employment Bill was not mentioned in the Queen’s speech in 2021 and Government has stated that it will be looked at ‘when parliamentary time allows’. However, it is hoped that we may get further clarity on this in 2022.

Equality Act 2010 Changes

Changes to the Equality Act 2010 In July 2021, the Government published its response to a consultation on how best to tackle sexual harassment in the workplace and indicated that it would seek to introduce a new duty on employers to prevent sexual harassment in the workplace and put in place greater protection against third party harassment.

It also discussed the possibility of extending the timeframe for bringing claims under the Equality Act 2010 for all claims (not just harassment) with the most likely proposal being to increase this from three months to six months.

Separately, in July 2020, recommendations were made to extend the time limit for pregnant women and new parents to bring claims for pregnancy and maternity discrimination from three to six months after dismissal. A response to these recommendations is awaited from the Government Equalities Office.

Again, we have no clear timeframe on the above, but it is hoped confirmation will be provided in 2022.

Closing the Ethnicity Pay Gap

The Government has previously consulted on the possibility of introducing mandatory reporting for employers on ethnicity data to help identify and close the ethnicity pay gap.

The Equal Pay (Information and Claims) Bill was introduced into parliament, setting out proposals for mandatory reporting of ethnicity data for larger employers. However, the Bill did not complete its passage through parliament within the parliamentary session.

It remains to be seen what will happen with this. However, there is a lot of support for ethnicity pay gap reporting and so we expect to see more on this topic in 2022.

Reporting on disability reporting and increased support

The Government has launched a consultation on potential voluntary and mandatory reporting on disability within the workplace which would include employers reporting on the proportion of employees identifying as disabled. This consultation closes on 25 March?2022 and a response is due 17 June?2022.

The Department for Work and Pensions also published its Green Paper at the end of July 2021 setting out proposals for providing greater support to employees with health conditions. This includes looking at employment outcomes and seeking to close the disability employment gap. A White Paper is expected in mid-2022.?

Supporting menopause at work

On 23 July 2021 an inquiry was launched by the House of Commons Women and Equalities Committee seeking views on whether more legislation is required to better protected women going through the menopause while at work including whether employers should be required to have a workplace menopause policy in place. The inquiry closed in September 2021 and further guidance on this is awaited.

Restrictive Covenants in employment contracts

The Department for Business, Energy and Industrial Strategy (BEIS) launched a consultation in December 2020 on the possible reform of post-termination non-compete clauses, which included views on whether to ban them entirely.

This consultation also referred to exclusivity clauses in employment contracts and sought views on whether to extend the ban on their use (currently they are banned for zero-hour workers) to cover low paid employees. The consultation closed last year and, so far, there has been no development in relation to this. Again, it is hoped that greater clarity will be provided in 2022.

Immigration

Right to Work checks

Following the Home Office’s decision to provide its final extension of the end date for temporary adjusted right to work checks (5 April 2022), it has also been announced that from 6 April 2022, Biometric Residence Card (BRC), Biometric Residence Permit (BRP) and Frontier Worker Permit (FWP) holders will be required to evidence their right to work in the UK by using the Home Office prove your right to work online service and will no longer be permitted to provide physical immigration documents to their employers as evidence of their right to work.

Retrospective right to work checks will not be required for those BRC, BRP, or FWP holders who were employed up to and including 5 April 2022, with employers maintaining a statutory excuse against a civil penalty, so long as the initial right to work checks were carried out in line with the guidance in effect at that time.

Those BRC, BRP, or FWP holders starting a new job on 6 April 2022 or later must use the Home Office online service to prove their right to work to their employer, even if their BRC/BRP/FWP shows an expiry date later than 6 April 2022, and employers in turn must use the Home Office check a job applicant’s right to work online service to finalise the online check and maintain a statutory excuse.

New UK Immigration routes

The Global Business Mobility (GBM) and Scale-up visas are expected to launch in the Spring of 2022. The GBM route will fall under the existing sponsorship system and is intended to streamline the transfer of overseas staff to the UK, who currently can only be transferred to the UK through sponsorship from a UK organisation with an Intra-Company Transfer (ICT) sponsor licence, and who cannot obtain settlement in the UK under the ICT visa route.

The purpose of the Scale-up visa is to “help the UK’s fastest-growing businesses to access overseas talent,” as stated in the Chancellor’s Autumn 2021 budget and spending review. The Scale-up visa will allow businesses to circumnavigate the existing requirement to apply for a Worker sponsor licence to employ non-settled workers already resident in the UK, or desired candidates based overseas.

UK businesses will have to meet certain requirements to be eligible for the Scale-up route, such as showing that in a 3-year period, their annual average revenue or employment growth rate was greater than 20%, and that they had a minimum of 10 employees at the start of the 3-year period.

The minimum base salary for workers on the Scale-up visa will be higher than their sponsored counterparts on the Skilled Worker route, however the Scale-up visa route, while still in its infancy, does seem to provide greater flexibility with there being no formal sponsorship.

Employment law and Immigration law

For further information contact our employment and immigration solicitors.