The majority of 2021 has still been dominated by the pandemic and the impact of COVID-19 on all sectors and businesses. As we moved cautiously towards a business world that was slowly getting ‘back to normal’, December 2021 has seen the introduction of the government’s ‘Plan B’ measures in response to a new COVID-19 variant starting to impact businesses, particularly in the hospitality sector. The ongoing impact of the omicron variant into 2022 remains to be seen, but the world of employment law has continued to move forward and will continue to do so in 2022. As we come to the end of 2021, we look back at the changes that you may have missed and what you can expect in 2022.
The national living wage increased from £8.72 to £8.91 per hour, an increase of 2.2% and now applies to workers aged 23 and over (previously the increase only benefited those over the age of 25).The record keeping period for national minimum wage purposes also increased to 6 years (from 3 years).
Family related pay (Statutory maternity, adoption, paternity, and shared parental pay) increased to £151.97 per week and the rate of Statutory Sick Pay (SSP) increased to £96.35 per week.
April also saw the rules on off-payroll working, often referred to as IR35 changed, moving the compliance burden from the individuals’ personal service company to the private sector companies engaging them. It is now the client company or organisation that has to determine whether the individual is an employee for tax purposes. The rules only impact medium and large “client” organisations who will be treated as an employer for income tax and national insurance purposes and will be responsible for making the deductions.
The right not to be subjected to detrimental treatment for leaving or refusing to attend work on health and safety grounds under s44 of the Employment Rights Act 1996 was extended to protect workers, not just employees.
The Home Office announced that the temporary adjustments to the right to work checks that were introduced during the pandemic have been extended until 5th April 2022. The temporary rules allow employers to carry out right to work checks using video calls and to accept scanned copies of identity documents. With the government guidance to now work from home where possible and the threat of new restrictions being introduced, this adjustment may be extended again in 2022.
The Coronavirus Job Retention Scheme or ‘furlough scheme’ came to an end on 30th September 2021. It was expected that this would result in widespread redundancies across the board, but thankfully this has not been the case. With the rise of the omicron variant it is sincerely hoped that a similar scheme will not be required in 2022 but what the impact of this new variant may be is still unknown.
The deadline for anyone working or volunteering in a care home to be fully vaccinated against COVID-19 was 11th November 2021 unless of course one of the exemptions apply. A judicial review was brought on 9th September 2021 challenging the requirements of mandatory vaccinations for care home workers but when this will be heard and what the outcome will be is yet unknown.
Restrictive covenants or post termination restrictions have always been hotly debated but with a government consultation on this subject concluding in February 2021, it is possible that reforms could be introduced and may include compulsory compensation for the employee which is paid by the employer for the duration of any restrictions and potentially even a complete ban on non-compete clauses. Compensation for any period of restriction is common in many European countries but it remains to be seen what the UK government will do in an attempt to balance the needs of an employee to work and the employer to protect their legitimate business interests.
Extending pregnancy protection from redundancy
An employee at risk of redundancy while on maternity, adoption, or shared parental leave has the right to be offered any suitable alternative vacancy that is available. The government is proposing to extend this protection to pregnant employees (once they have told their employer of their pregnancy), employees returning from maternity or adoption leave within the previous six months and parents returning from shared parental leave. There is no proposed date for this as yet, but the government has said it still intends to extend this protection “as soon as parliamentary time allows”.
Flexible working consultation
The government launched a consultation on 23rd September 2021 (which closed on 1st December 2021) proposing to remove the service requirement for making flexible working requests. Currently employees must have worked for their employer for at least 26 weeks before making a flexible working request.
In addition to making flexible working requests a day one right, the consultation also considered whether employers will be required to suggest alternatives if they reject an employee’s request and whether the 8 business reasons for refusing a request remain valid in a business world that has embraced remote and hybrid working. The consultation closed on 1 December 2021 and we await the outcome following the review of the evidence submitted.
Prevention of sexual harassment
A new obligation for employers to prevent sexual harassment and third- party harassment in the workplace will be introduced but at this time, there is no confirmed date for this.
Mandatory vaccinations for wider healthcare settings
It has been confirmed that providers of CQC regulated activities in the health and social care sector will only be able to employ staff who have been fully vaccinated against COVID-19 if their role involves direct, face-to-face contact with patients and service users, unless they are medically exempt. The new requirements will not just apply to employees but will also apply to volunteers and agency workers.
The new regulations come into force on 1st April 2022. As we have seen with the care sector, it is possible that this decision will be challenged in the courts but is unlikely to be heard before the April deadline.
If you have any questions about the changes to employment law in 2021 or any of the proposed new measures in 2022, please contact Julie Edmonds, Head of Employment, by email at email@example.com; telephone on 0207 644 7286 or contact her on LinkedIn.