After the uncertainty that Covid-19 continued to cause in 2021, it’s time to cast our minds to the year ahead. With the hope that the disruption caused by the pandemic will eventually begin to abate, we take a look at some of the key non-Covid developments that are on the horizon for employment law in 2022.
Increases to the national minimum wage (NMW) and national living wage (NLW)
From 1 April 2022, the national living wage (NLW) and national minimum wage (NMW) rates will be:
- Age 23 or over: £9.50 (up from £8.91).
- Age 21 to 22: £9.18 (up from £8.36).
- Age 18 to 20: £6.83 (up from £6.56).
- Age 16 to 17: £4.81 (up from £4.62).
- Apprentice rate: £4.81 (up from £4.30).
Statutory family leave pay and statutory sick pay
From 3 April 2022, the maximum weekly statutory maternity pay, statutory adoption pay, statutory shared parental pay, statutory paternity pay and statutory parental bereavement pay will increase from £151.97 to £156.66.
From 6 April 2022, statutory sick pay will increase from £96.35 per week to £99.35 per week.
Also from 6 April 2022, the average gross weekly earnings required to qualify for these benefits (Lower Earnings Limit) will rise from £120.00 or more to £123.00 or more.
Gender pay gap reporting
Last year’s deadline for gender pay gap reporting was delayed from the usual 4 April date to 4 October 2021. The Equality and Human Rights Commission explained when it announced the extension that this was intended to allow employers additional time to meet their reporting obligations, in recognition of the disruption caused by the Covid-19 pandemic. No such extension has been announced for 2022, however, so this year’s reporting deadline for private sector employees is likely to be 4 April 2022 (with the data to be based on the snapshot date of 5 April 2021).
Social Care Levy
The Social Care Levy is a new tax that is intended to provide funding for social care. It will initially be raised through an increase in national insurance contributions (NICs). From April 2022, there will be a 1.25% increase in NICs payable by both employers and employees who are subject to Class 1 NICs. From 2023, the new tax in the form of a 1.25% surcharge will replace the NICs increase.
The long-awaited Employment Bill may finally make its way onto the statute books in 2022, though the Government has neither confirmed which measures will be included nor committed to a particular date for implementation. The Bill could contain provisions on a variety of matters, including but not limited to the following:
- to protect workers in relation to NMW, labour exploitation and modern slavery, holiday pay for vulnerable workers and statutory sick pay, to better ensure that vulnerable workers are aware of and can exercise their rights and to support business compliance.
- The right for all workers, including those on zero-hours, after 26 weeks' service
- Extending the period of redundancy protection during pregnancy and maternity leave from the point an employee notifies their employer of their pregnancy (whether orally or in writing) until six months after the end of their maternity leave
- The introduction of statutory neonatal care leave and pay of up to 12 weeks for parents of babies who are admitted into hospital as a neonate, aged 28 days old or less.
- The right for unpaid carers to take a week of unpaid carer’s leave per year.
- Following the consultation “Making flexible working the default”, which closed in December 2021, the right to make a flexible working request could be extended so that it applies from day 1 of employment (as opposed to the current 26 weeks).
Other possible legislative changes
A number of Government consultations have concluded within the past couple of years, in respect of which the Government has not given any timescale for next steps. We wait to see if it will move forward with proposals in the following areas this year:
- Reform of the law on post-termination non-compete clauses.
- An extension to the ban on exclusivity clauses in zero hours contracts to contracts where the worker’s guaranteed weekly income is less than the Lower Earnings Limit, as well as compensation for those whose shifts are cancelled at short notice, an entitlement to reasonable notice of allocated shifts and protections for those who refuse last minute shifts.
- A new duty for employers to prevent sexual harassment and third-party harassment in the workplace.
- An extension of the time limit for all claims under the Equality Act 2010 to six months.
- Curbs on the use of non-disclosure provisions in employment contracts and settlement agreements in discrimination and harassment cases.
- The introduction of ethnicity pay gap reporting.
- Legislation aimed at protecting those going through the menopause at work.
Government consultations on disability and health matters
The Government is currently consulting on disability workforce reporting. The focus of the consultation is on the potential mandatory publication of the proportion of employees in a workforce who identify as disabled, as well as whether a standardised approach to collecting disability workforce data should be adopted and, if so, how this could be achieved. If you would like your views to be taken into account in Make UK’s response to this consultation, please email your comments to [email protected]. Please note that the consultation closes on 25 March 2022, so we would ask for your comments by 18 March 2022.
The Government has also indicated that it will publish a Health and Disability white paper later in the year, which may have implications for the future support employers offer to disabled people. This follows on from a Green Paper, published in July 2021, which set out initial Government proposals in this area.
Data protection developments
There were a number of consultations on aspects of the data protection regime last year, which, if they move forward, will be welcomed by employers. These include:
- The possible introduction of a fee structure for access to personal data held by data controllers.
- The publication of new data protection and employment practices guidance and products, to replace the existing ICO employment practices code which was based on the previous Data Protection Act 1998 and has not been updated to reflect the introduction of the GDPR.
- Updated guidance on how organisations can continue to protect people's personal data when it is transferred outside the UK, including a draft ICO international data transfer agreement and international data transfer risk assessments and tools.
Cases to look out for
Away from legislative developments, there are several cases that are of interest for employers that either are due to be heard early this year or were heard late last year and in which judgments are expected in the coming months.
Mackereth v Department for Work and Pensions
In October 2021, the Employment Appeal Tribunal (EAT) considered whether a Christian doctor who was engaged to carry out health assessments for the Department of Work and Pensions had been discriminated against when he was suspended and ultimately dismissed for refusing to use transgender patients’ chosen pronouns when addressing them. An Employment Tribunal had concluded in 2019 that there was no discrimination, taking the view that the doctor’s conscientious objection to transgenderism was not capable of protection as a religious or philosophical belief under the Equality Act because it was incompatible with human dignity and conflicted with the fundamental rights of others. The EAT reserved its judgment and it will be interesting to see what approach it takes here, particularly in light of the decision in Forstater v CGD Europe – in June 2021 – that ‘gender critical’ beliefs (including a belief that sex is immutable and should not be conflated with gender identity) could be protected as a philosophical belief.
Chell v Tarmac Cement and Lime Ltd
In November 2021, the Court of Appeal heard an appeal against the High Court’s decision that an employer was not negligent or vicariously liable where an employee had played a practical joke that resulted in a contractor being injured at the workplace. The High Court had taken the view that there was no negligence because, while the employer was aware of tensions between employees and contractors, these were not serious enough to give rise to a foreseeable risk of injury. It had also held that the employer was not vicariously liable. This was because, although the incident occurred at the workplace, the employee’s actions were unconnected with his work activities. The Court of Appeal’s judgment is awaited.
Harpur Trust v Brazel
Also in November 2021, the Supreme Court considered whether part-year workers on permanent contracts should have their holiday entitlement pro-rated when compared with full-year workers, to reflect the fact that they do not work throughout the year. This is an important case, as the Court of Appeal’s earlier decision that such pro-rating was inappropriate rendered the typical method of calculating holiday for part-year workers as 12.07% of hours worked incorrect. Employers who use this method will therefore be eagerly anticipating the Supreme Court’s judgment. In the meantime, they may wish to consider the extent of their exposure in the event that the Supreme Court upholds the Court of Appeal’s decision.
Mercer v Alternative Future Group
Finally, in late January 2022, the Court of Appeal is due to hear an appeal against the EAT’s decision with regard to s146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A). The EAT found that s146, which provides protection from detriment for workers participating in union activities, should be read as also covering participation in industrial action, in order to avoid a breach of the right to freedom of association under the European Convention on Human Rights.
How we can help
We will continue to track key employment law developments and update our members on any forthcoming changes throughout the year.
Make UK members can speak to their regular adviser, or call the National Advice Line, if they require legal advice on any of the topics discussed above. We can also provide employment law advice and assistance to non-members on a consultancy basis. If you would like further information on our services, please call us on 0808 168 5874, or email us at [email protected].