After another challenging and unpredictable year dominated by the pandemic, employers have not yet been able to settle on what the ‘new normal’ looks like for their business and workforce. Meantime, many of the issues and trends that impacted the people agenda at the start of 2021 such as workforce wellbeing, ethical business practice and ESG together with a focus on diversity and inclusion will continue to be very significant in 2022.
In the short term, employers will need to bear in mind that the temporary changes to medical evidence requirements for SSP are currently set to end on 26 January, with those relating to right to work checks to end on 5 April 2022. Early April will also see the usual increases in statutory payments such as statutory maternity and parental bereavement pay which this year will increase to £156.66 per week and statutory sick pay to £99.35 per week. National minimum wage rates will also see annual increases with the national living wage for those aged 23 or over rising to £9.50 per hour on 1 April 2022.
Although there are a number of potential employment measures on the table, many of which are expected to be implemented through the Employment Bill, it is still not certain which, if any, of these will progress in 2022. The uncertainty of the legislative timetable and lack of detail means employers will need to keep a watching brief on a number of potential developments and we highlight some of these below.
New enforcement body for employment rights
The government has confirmed that it will proceed with establishing a new single enforcement body for employment rights. The new body will have a remit to protect workers through regulation and enforcement in areas such as national minimum wage, labour exploitation and modern slavery, holiday pay for vulnerable workers, statutory sick pay, agency workers and umbrella companies. If it proceeds, this could potentially be one of the most significant employment measures on the horizon, with the new body intervening on behalf of employees and workers in some circumstances where they would otherwise have had to take their own action in the employment tribunal. The indications are that the new body will have a range of enforcement powers available to it; regardless of the severity of these, there will also be reputational issues for employers where action is taken.
Modern slavery and wider scrutiny of labour supply arrangements
At the end of November 2021, the government launched a call for evidence looking at the role that umbrella companies play in the labour market and how they interact with the tax and employment rights systems. This, and changes last year to the off-payroll working rules, arguably reflects a wider scrutiny of labour supply arrangements more generally.
Proposed changes to requirements for transparency in supply chains under modern slavery legislation are still anticipated; these include stricter reporting requirements and harsher penalties for compliance failures.
Workforce reporting obligations
In 2022 gender pay gap reporting enters its fifth year meaning the underlying regulations must be reviewed by the Secretary of State and a report published on whether they meet the government’s policy objectives.
Employers could be required to report on other workforce related issues; as part of its National Disability Strategy the government is consulting on disability workforce reporting for large employers (250 employees and above). The consultation explores voluntary and mandated workplace transparency and closes on 25 March 2022.
Although the related consultation closed at the start of 2019, next legislative steps are still awaited in relation to the introduction of ethnicity pay reporting. The issue was debated in Parliament in September 2021 in response to a petition to introduce mandatory ethnicity pay gap reporting which received over 130,000 signatures.
The government consultation ‘Making flexible working the default’ included proposals to reform the statutory flexible working request procedure rather than any shift to an outright entitlement to work flexibly. Views were sought on issues such as making the statutory right to request flexible working a day one right and whether employers should be required to suggest alternative working arrangements rather than simply refusing the request. As the consultation only concluded at the start of December 2021, it may be some time before the government’s next steps are known.
Data protection changes
In autumn 2021 the government sought views on proposals to reform the UK’s data protection regime. The proposals were wide ranging with some modelled on approaches to data protection outside the EU such as Canada, New Zealand and Singapore. Those proposals that are of particular interest in the employment sphere include introducing a fee regime for DSARs, making it easier for organisations to rely on “legitimate interests” as a lawful ground for processing personal data and raising the threshold for reporting a data breach to the Information Commissioner’s Office (ICO) where the risk to the individuals is not material.
The ICO is also expected to publish updated data protection and employment practices guidance following a call for views which closed in October 2021.
Sexual harassment in the workplace
In July 2021 the government published its response to its consultation on sexual harassment in the workplace. Proposals include imposing a duty on employers to prevent sexual harassment in the workplace, re-introducing liability on employers for third party harassment and extending employment tribunal claim time limits on all Equality Act related complaints from three to six months. For more details on the response and a look at what employers should be doing now, see our update here.
The future of NDAs
It’s now over two years since the government responded to its consultation on proposals to prevent the misuse of confidentiality clauses (also known as non-disclosure agreements or NDAs). Proposed legislative steps include ensuring that confidentiality clauses cannot prevent disclosure to the police, regulated health and care professionals or legal professionals, requiring that the limitations of a confidentiality clause in a settlement agreement are set out with individuals receiving specific advice from their adviser not only on the nature of the confidentiality requirements in a settlement agreement, but also their limitations.
We still await further developments in relation to the new entitlement to statutory neonatal leave and pay that the government has said will be available to parents of babies who are admitted into hospital as a neonate (28 days old or less) for a continuous period of 7 days or more. It is proposed that parents will receive a week of neonatal leave and pay (subject to eligibility) for every week that their baby is in neonatal care, capped at a maximum of 12 weeks.
At the end of July 2019 the government confirmed that it intended to extend enhanced redundancy protection to pregnant women and new parents returning from family leave. Currently only those on statutory maternity or adoption leave are eligible for the relevant redundancy protection (very broadly, an entitlement to be offered a suitable available vacancy in a redundancy situation). Under the proposed measures, redundancy protection will apply from the point an employee informs her employer that she is pregnant to the period ending six months after her return to work with a period of protection also available to new parents returning from family leave.
The government has confirmed that it will introduce a new right to carer’s leave which will be a day one right for qualifying employees to take a week of unpaid leave each year to provide care. The entitlement will be up to 5 working days leave per year (pro rata for part time workers) taken in day or half day blocks with similar protection from dismissal and detriment to that in place for other family leave entitlements.
Menopause and the workplace
The Women and Equalities Committee inquiry ‘Menopause and the workplace’ examined the extent of discrimination faced by those experiencing menopause in the workplace and investigated how government policy and workplace practices can provide better support. Women in the relevant age group are likely to be eligible for senior management roles, and so their exit can lessen diversity at executive levels, contribute to the gender pay gap and feed into a disparity in pensions. There are no legislative proposals in relation to this issue at the moment, but this is an area for employers to continue to monitor with some calls for legislation to require employers to put in place a workplace menopause policy to protect women going through the menopause against discrimination.
Other potential developments
Other proposals on which we may see developments in 2022 include:
As always, the detail of all of these measures will be key. Please do get in touch with your usual CMS contact if you would like to discuss the potential implications for your business and workforce.