Employment Law Changes To Watch Out For In 2022

In the 2019 Queen’s Speech a new Employment Bill was announced.  The Bill has been delayed undoubtedly due to the difficulties and challenges presented by the pandemic.  However, the government has confirmed that the bill will be published, ‘’when parliamentary time allows” and it is expected that this will be some time in 2022.  This year will also see the usual changes to statutory rates of pay and we await some important decisions on discrimination and holiday pay.  

1. Mandatory vaccinations

2022 has got off to a quick start with changes being made to the mandatory vaccination requirement which was brought in to apply to care home workers in England in 2021.  Some minor changes came into effect in January, but the wider change will take place on 1 April 2022 which will extend the mandatory vaccination requirement to those working in “any other regulated activity” outside a care home.  Regulated activities include nursing and personal care, and most forms of health care including medical treatment, surgery, diagnostic services, ambulance services, midwifery and dentistry amongst other things. The vaccination requirement will not apply where the person is under 18, is clinically exempt, has no face-to-face contact with service users, or where the regulated activity is part of a “shared lives agreement”.  Similar exemptions will apply in relation to clinical trials and new employees who have only received one dose of vaccine.   

2. Employment Bill

The much-awaited Employment Bill is promised to include, amongst other things:

• A new right to one week’s unpaid leave for unpaid carers – to be a day one right, the leave to be taken in one block or individual days for caring purposes, such as personal and practical support, financial matters, personal or medical care.

• Statutory neonatal leave and pay for parents whose babies require neonatal care – this will give parents the right to take an additional week of leave for every week their baby is in neonatal care, up to a maximum of 12 weeks. It is expected to be available for those with 26 weeks’ service and who earn above the minimum pay threshold.

• Flexible working a day one right – removing the requirement to have 26 weeks’ service before a request can be made. A consultation was run on this towards the end of last year and the response is awaited.   

• Extending redundancy protection for women and new parents – to apply to pregnant women from the point they notify their employer that they are pregnant and until 6 months after a mother has returned to work. It will also apply to those taking adoption and shared parental leave in some form. 

• A new single enforcement body – to enforce breaches in relation to national minimum wage, modern slavery, employment agencies, statutory sick pay and holiday pay for vulnerable workers. It will have new powers to tackle non-compliance, including civil penalties of up to £20,000 per worker for the breaches under the Gangmasters Licensing and Employment Agency Standards regimes.

• A new right for workers (including those on zero hours contracts and agency workers) to request a more predictable contract after 26 weeks’ continuous service – this is intended to provide more certainty about the number of hours or days they will be required to work.

• New duty to prevent workplace sexual harassment – and the reintroduction of protections for employees who are harassed by customers and clients (third parties). It is also proposed that the time limit be extended for bringing all claims under the Equality Act 2010.  It is not known if this will be part of the Employment Bill or elsewhere. 

Consultations have concluded on the above save for flexible working. 

3. Discrimination

The Employment Appeal Tribunal (EAT) is due to hear two cases this year which deal with the potential for conflict between transgender rights and religious or gender critical beliefs (Mackereth v DWP (unreported), and Higgs v Farmor’s School (unreported)).   The EAT decided last year in the case of Forstater v CGD Europe [2021] IRLR 706 that a claimant’s belief that biological sex is immutable was protected under the Equality Act 2010.  Dr Mackereth’s claim concerns him no longer being engaged by the DWP after he refused to use patients’ chosen pronouns.  Ms Higgs’ was dismissed following posts on social media that the school considered to be homophobic and transphobic.    

4. Menopause

As mentioned in our recent bulletin covering the highlights of 2021, the issue of how the menopause may impact the workplace finally began to gain serious traction last year.  As highlighted by a recent independent report commissioned by the Government, almost 1 in 4 women end up leaving the workforce, and 25% consider giving up work, as a result of the impact of the menopause.  This amounts to hundreds of thousands of people. 

Successful claims were brought in 2021 where it was found that the claimant had a disability pursuant to the Equality Act 2010 due to the symptoms of the menopause.  Whilst we are awaiting the outcome of the Women and Equalities Committee’s inquiry into menopause and the workplace, it is nonetheless a good idea for employers to get ahead of the curve and to think about what steps they can take to address the impact of the menopause.  Not only would this be best practice, it would assist countless people who may otherwise be struggling and also result in fewer, costly discrimination claims being brought.  We would be delighted to assist you if you would like a consultation regarding your practical and legal options in this area and feel free to drop us a line in this regard.

5. Holiday pay

 The Supreme Court is due to hand down a decision on holiday pay calculation (Harper Trust v Brazel [2019] IRLR 1012).  The case is mainly relevant for ‘part-year’ workers (such as someone on a term-time only contract), but it demonstrates the complications of calculating holiday pay for workers with atypical patterns of work.

6. Extra bank holiday

There will be an extra bank holiday this year to celebrate the Queen’s platinum jubilee.  On account of this, the second May bank holiday will be moved to Thursday 2 June with the extra bank holiday taking place on Friday 3 June.  Please factor this into your delivery plans for your business and we recommend that the wording in employment contracts is reviewed.  According to the specific wording in the contract, it may not be necessary for employers to give their staff an extra day’s paid holiday if, for example, the contract states that staff get “28 days inclusive of bank holidays”, or similar.

7. Increases to statutory payment rates

Statutory payment rates will increase in April 2022 as follows:

8. National Insurance contributions to rise

On 6 April 2022, National Insurance contributions for employers and employees will rise by 1.25%.  This increase will fund health and social care and will be replaced in April 2023 by a separate health and social care levy (at which time, National Insurance contributions will revert to current levels). 

9. EU directives

And finally – employers with EU operations should be aware of EU directives due for implementation by Member States in 2022.  New legislation will include giving all workers a right to a written statement of their terms and conditions, minimum levels of paternity and parental leave, and a new right to five working days carers’ leave each year.