Legislative Update: Employment Law 2022

Emma Gross
2 December 2021

As we move into the final month of 2021 and cast our eyes towards 2022, it is worth taking a moment to look at the significant changes in legislation. Over the last two years, the COVID-19 pandemic has meant that many of the previously anticipated employment law changes have been delayed or postponed. With the hope that we are starting to see the end of the pandemic restrictions, 2022 should see legislative developments start to progress further. We are also seeing the introduction of new legislation as a direct reaction to the lessons learnt through the pandemic. I have summarised some of these legislative changes below. 

Mandatory Vaccinations 

From 11 November 2021, all care home workers and anyone entering a care home must be fully vaccinated against COVID-19, unless they fall within one of the exemptions, including medical exemption. This will include front line care staff and also tradespeople, hairdressers, beauticians and CQC inspectors visiting the care home. 

The Government has also announced that from 1 April 2022, it will be unlawful for CQC regulated providers in health and social care in England to employ unvaccinated staff, except for those individuals who are medically exempt. This requirement will apply to all doctors, nurses and dentists who are directly involved in patient care, and to support staff such as receptionists, cleaners and porters who may have contact with patients in the course of their work. 

Which means that… 

Care home employers must implement robust policies which clearly outline the vaccination requirement for staff and any professionals visiting the care home. The policy should also set out the employer’s data protection obligations in relation to processing special category health data regarding vaccination and exemption status.  

Employers in the wider CQC regulated health and social care sector should be communicating with their staff now to understand their vaccination status and to encourage those who are not medically exempt but have not yet been vaccinated to do so ahead of the new requirement to be vaccinated in spring. 

Outside of the care sector there is no legal requirement to be vaccinated against coronavirus. Any blanket policy requiring staff to be vaccinated in order to work will be considered unlawful and will carry discrimination and health and safety risks. However, there may be circumstances where vaccination may be a fair requirement. For example, if travel is integral to their role an employee may need to be vaccinated to meet entry requirements of another country. Employers will need to assess employees’ rights in these circumstances to avoid a discrimination claim. 

Workplace sexual harassment 

On 21 July 2021, the government published its response to the consultation on workplace sexual harassment, which was launched in July 2019. 

It confirms that the government will introduce a duty on employers to prevent sexual harassment and new protections from third-party harassment.  It has yet to be confirmed when this new duty is likely to take effect; draft legislation to implement the new duty has not yet been published, but is anticipated in 2022. 

A new statutory code of practice will be published to support the duty to prevent sexual harassment, along with accessible guidance for employers. 

Which means that… 

This consultation response should prompt employers to put their harassment policies and procedures at the top of their HR priorities for this year. Training and awareness will be central to communicating the message throughout the workforce, including those who are working remotely. Harassment can still occur in a remote environment although it takes different forms. 

The Equality and Human Rights Commission have published technical guidance as well as a guide outlining the seven steps every employer should consider taking to ensure they are doing all they can to prevent and deal with sexual harassment in the workplace. You can download the guide here

The seven steps are: 

  • Develop an effective anti-harassment policy 
  • Engage staff with regular one-to-ones and have an open-door policy 
  • Assess and mitigate risks in the workplace 
  • Consider using a reporting system that allows workers to raise an issue anonymously 
  • Train staff on what sexual harassment in the workplace looks like, what to do if workers experience it and how to handle complaints 
  • Act immediately when a harassment complaint is made 
  • Treat harassment by a third-party just as seriously as that by a colleague.

It would be advisable for Employers to review the current procedures and policies which are in place and begin gathering information. By starting this process well in advance they will be in a strong position to know which of their exisitng practices are likely to need to be addressed when the legislation changes, and will give them a headstart in actioning those changes as quickly as possible.

New right to carer’s leave 

In September 2021, the Government published its response to the 2020 consultation on carer’s leave, confirming that it plans to legislate an entitlement to carer’s leave for employees as a ‘day one’ right. 

The leave will consist of one week (up to 5-working days) of unpaid leave per year for those employees with long-term caring responsibilities, to be taken in full or half days. 

This new right is likely to be included in a forthcoming Employment Bill. 

Which means that… 

In view of the new right being introduced, employers may wish, in due course, to update their staff handbooks and consider putting in place a written policy explaining what the right is and how employees may request leave. Consideration should be given to whether evidence of eligibility will be required and whether the right will be enhanced, for example, by offering additional and/or paid leave. Where a decision is made to offer an enhanced right that includes paid leave, this is should be included within the information that is given to an employee on Day 1 of their employment perhaps in the employment contract or a document such as a Staff Handbook. Training for line managers would also be advisable to emsure that they understand how to respond to requests and how to avoid responding in a way which may be viewed as detrimental or discriminatory. 

Neonatal leave and pay 

In March 2020 the government confirmed its intention to introduce statutory neonatal leave and pay for parents of babies requiring neonatal care. This commitment was reiterated by the government in March 2021 and will be included in the forthcoming Employment Bill. 

Parents will have 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. 

Which means that… 

In view of the new right being introduced, employers may wish, in due course, to update their staff handbooks and consider putting in place a written policy explaining what the right is and how employees may request leave. Do bear in mind that this is a right for both mothers and fathers providing an equal opportunity for parents of either sex. 

Right to request flexible working 

A new consultation has been published on proposals to extend the existing right to request flexible working from ‘day one’ of employment. The consultation is seeking views on how to make flexible working the ‘default position’, which was a manifesto commitment by the government in 2019. 

The consultation closes for responses on 1 December 2021. It is likely that any statutory amendments that are confirmed following this consultation will be included in the anticipated Employment Bill. 

Which means that… 

Even if the government introduce tighter timescales for responding to requests, it shouldn’t have a significant impact on existing practices as employers should already be familiar with the process and its requirements. Employers should make sure they are prepared to manage requests in line with the time requirements and have the resources available to achieve this. This might involve training managers and reviewing current contracts and policies. Do bear in mind that whilst employers are obliged to deal with flexible working requests in a reasonable and timely manner, they can still refuse to grant the request as long as the refusal is for one or more of the following reasons: 

  • the burden of additional costs; 
  • detrimental effect on ability to meet customer demand; 
  • inability to reorganise work among existing staff; 
  • inability to recruit additional staff; 
  • detrimental impact on quality; 
  • detrimental impact on performance;
  • insufficiency of work during the periods the employee proposes to work; or 
  • planned structural changes. 

Tips and gratuities 

In September 2021, the government published its response to the 2016 consultation on tipping, gratuities, cover and service charges. 

The government has confirmed its intention to include measures in the anticipated Employment Bill to ensure that workers in the hospitality sector retain tips on a fair and transparent basis. Employers will be required to have a written policy on tips and keep a record of how tips are dealt with. 

Which means that… 

Under the new legislation, if an employer disregards or ignores the new rules in relation to fair tipping, they could face employment tribunal claims. This could mean compensation and fines, so it’s important that you’re on top of what you need to do to comply with the new laws. 

Extending redundancy protection for women and new parents 

On 14 May 2021, the government confirmed its intention to extend the redundancy protection period currently afforded to mothers on maternity leave in the forthcoming Employment Bill. 

Protection will apply to pregnant women from the point they notify their employer of their pregnancy until 6 months after a mother has returned to work and will also apply to those taking adoption and shared parental leave. 

Which means that… 

Pregnant women are being recognised as at a greater risk of redundancy and are being afforded more rights and protections than ever before. Employers should therefore ensure that all managers are aware of the legislative changes and that the necessary policies and procedures are updated accordingly. 

Employment Bill 

In December 2019, a new Employment Bill was announced in the Queen’s Speech, but it has yet to be published and was notably absent from the May 2021 Queen’s Speech. The government has since indicated that the Bill will be forthcoming “when parliamentary time allows”. 

It is anticipated that the Employment Bill will be published at some point in 2022. Further guidance will follow in due course. 

Emma Gross
Partner – Employment, Data Protection
Emma Gross is a Partner Solicitor at Spencer West. She specialises in Complex employment tribunal cases, data protection and the GDPR, negotiating settlements and advising on fair and reasonable redundancy procedures.