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What’s happening in employment law in 2022?

February 16, 2022
Insight

Employment law is an ever-changing area of law with regular updates, deliberations and consultations taking place. For this reason, particularly where you are running your own business or working in HR, it is important to keep an eye out for legislative changes and case law developments, otherwise you just might miss them!

The most fast-moving area of law in recent years was during the emergence of the Covid-19 pandemic.

Unfortunately, we have not seen the back of Covid-19 yet and we expect to see more court rulings about the furlough scheme and Covid-19 safety in the workplace.

We thought it would be useful to highlight some of the key changes, developments and ideas that are currently being deliberated and what you should watch out for in 2022.

Extra bank holiday

To celebrate the Queen's platinum jubilee, there is an additional bank holiday this year. The May bank holiday weekend will be moved to Thursday, 2nd June and an additional bank holiday on Friday, 3rd June will give many employees the opportunity to take a four-day weekend.

You will need to decide if your staff are entitled to take an additional day’s paid leave either on the 3rd June or at another date in the holiday year. First of all, look at the holiday clause in the employee’s contract of employment. If the contract states that the employee is entitled to, for example, 28 days’ holiday which includes all statutory and bank holidays, you aren't obliged to give them an extra day’s paid holiday. The same will apply if the contract just sets out the number of days holiday the employee can take and doesn't mention bank holidays at all.

On the other hand, if the contract states that employees are entitled to, for example, 20 days of paid holiday plus statutory and bank holidays, you will have to allow them to take an additional day's leave. But, if the contract states that they are only entitled to the statutory and bank holidays that are usually observed in England and Wales, they are not entitled to the additional day.

‘Making flexible working the default’

This is a hot topic with changes on the horizon in this area. Under the current legislation, employees with at least 26 weeks' continuous employment can make a request for flexible working under the statutory scheme for any reason. If they do so, the employee triggers the procedure and time limits apply in which an employer must consider the request, discuss it with the employee and notify the employee of the outcome.

An employer can only refuse a request for one (or more) of the eight reasons set out in the legislation. In 2021, the UK government launched a flexible working consultation called ‘making flexible working the default’. The consultation sets out 5 proposals to the current framework and provides an indication of what may be produced. In summary:

1. Making the right to request flexible working a ‘day one’ right meaning from the first day of employment. This is a significant change and one which we do not think will go down well with employers, particularly where the role in which the employee has been employed requires an employee to attend the office every day. Under the current proposal, an employee could in effect make a flexible working request to work from home on their first day in the job!

2. Making changes, if necessary, to the eight business reasons for refusing a request to work flexibly.

3. Requiring the employer to suggest alternatives if they plan to refuse a request.

4. Allowing employees to make more than one request in 12 months.

5. Raising awareness of the existing right of employees to request a temporary flexible working arrangement.

Sexual harassment in the workplace

In 2021, the UK government published its long-awaited response to its consultation on measures to combat harassment in the workplace and strengthen legal protections in the workplace. Whilst it is unclear as to when these measures will actually come into force, employers should be aware of these forthcoming changes:

1. Extending the time limit for bringing all claims under the Equality Act 2010. The government has suggested that a time limit of six months is likely to be the most appropriate course of action.

2. Employers will be required to take a proactive positive duty to prevent sexual harassment in the workplace. Under current legislation this is not a requirement. What this means under the reformed proposed changes is that an employer, can potentially be liable for failing to take preventative measures without the need for an incident to have occurred.

3. Introduce a duty for employers to prevent third-party harassment in the workplace, when parliamentary time allows. This duty will allow have a defence that the employer has taken "all reasonable steps" to prevent the harassment.

It is sensible for employers to start thinking about policies and training they provide to their staff in this area so that they are well prepared for the forthcoming changes.

Menopause in the workplace

We have recently seen this topic crop up into mainstream press a fair bit. The symptoms of menopause vary in severity but can have a significant impact on an employee’s ability to perform as usual in the workplace. Almost one million women in the UK have left their jobs, at the peak of their careers, as a result of menopausal symptoms. There has also been a rise in the number of women bringing Tribunal claims referencing the menopause at the center of their unfair dismissal and sex discrimination claims.

The House of Commons Women and Equalities Committee has launched an inquiry into workplace practices surrounding the menopause. The inquiry will examine existing discrimination legislation and workplace practices, to consider whether enough is being done to prevent women from leaving their jobs as a result of the menopause and if further legislation is needed.

Employers need to start thinking practically about how the menopause is addressed in their workplace or they might see themselves facing legal claims, such as discrimination on the grounds of sex, age and disability. Employers can implement practices addressing workplace discrimination relating to menopause such as by raising awareness and providing training on the topic, implementing a menopause policy, and carrying our risk assessments in line with health and safety obligations.

For now, we shall eagerly await the outcome of the House of Commons Women and Equalities Committee inquiry. Watch this space!

If you have any queries about any of the above, then please do not hesitate to contact us.

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