Employment law, as with most areas of the law, is constantly changing. Often, for employers, there are regular changes to employment law which it is essential to be aware of and stay on top of. Normally, failing to comply with changes to the law can lead to claims against the employer which in turn can be costly.
It is therefore important for employers, at the end of each year, to ensure that they are aware of any upcoming changes for the following year so that plans can be made to accommodate those changes moving forward.
Over the last two years, as a result of the Covid-19 pandemic, changes to the law, particularly employment law, have been largely focused on dealing with the pandemic. Moving into 2022, it is expected that there could be significant changes as parliament catches up on lost time.
This article considers the changes that we will see, as well as those that we believe, are likely to happen, albeit there has been no official confirmation at this time.
- Gender Pay Gap Reporting
- As a result of the pandemic, the usual March deadline for those employers with 250 or more employees was pushed back to 5th October 2021. However, moving into 2022, as things stand and unless there is a further announcement from the government, the deadline should revert to normal in 2022, meaning that for public sector employers the deadline is 30th March 2022, with a snapshot date of 31st March 2021, and for private-sector employers, the deadline is 4th April 2022 with a snapshot date of 5th April 2021.
- Social Care Tax
- Whilst the introduction of this tax was widely reported in the news this year, it could easily have been forgotten. From April 2022 there will be a rise in National Insurance Contributions of 1.25% for employees and this will need to be matched by employers. These changes should be made immediately and should show in employees’ salaries from April 2022 onwards.
- Minimum Wage Increases
- As is now tradition, National Minimum Wage will increase from 1st April 2022 to the following rates:
- 23+ - £9.50 an hour
- 21-22 - £9.18 an hour
- 18-20 - £6.83 an hour
- 16-17 - £4.81 an hour
- Apprentice - £4.81 an hour
These are changes that we anticipate will be made, based on information from the government over the last two years. However, the introduction of some of these changes could depend on whether parliament has the time to consider them properly in the coming 12 months. This means it is possible that these changes don’t happen in 2022, however, it seems likely that the changes will be made at some point, even if it is not next year, so being aware of them now is still helpful and allows proper planning by employers.
- It is expected that the government will seek to introduce the Employment Bill in 2022, which will bring with it a whole raft of changes to the employment law landscape. This section will provide a brief overview of the changes that we expect the Employment Bill to bring in:
- The creation of a single enforcement body relating to employment rights. This will look to combine the HMRC National Minimum Wage Enforcement arm, the Employment Agents Standards Inspectorate and the Gangmasters and Labour Abuse Authority. In reality, this change will not mean much for employers initially or potentially at all, however, it should mean more efficient enforcement moving forward.
- An extension to the current protections given against redundancy for pregnant women and those taking adoption and shared parental leave. The current position protects pregnant employees or those on maternity, adoption or shared parental leave, from redundancy where there is alternative employment. The Employment Bill will seek to extend that protection to include the six months after the employee returns to work.
- The introduction of neonatal leave and pay. The Bill will aim to introduce neonatal leave and pay which will be available to the parents of babies requiring neonatal care. It is expected that this will be in the form of an additional week of leave for each week the baby is in neonatal care to a maximum of 12 weeks. As things stand, it is expected that the usual qualification criteria and statutory pay elements will apply for this leave.
- The introduction of carers leave. This is expected to be one week of unpaid leave per year for employees with long-term caring responsibilities. It appears that this will be allowed to be taken in a full week block, or as individual days throughout the year and that this will be a right that begins on day one of employment.
- The position with regards to tips and gratuities will be better policed. The Bill will aim to introduce new rules surrounding tips and gratuities which will allow employees to retain tips on a fair and transparent basis. Employers will be required to have policies in place relating to tips and gratuities and will be expected to keep a record of how they are dealt with and distributed to employees to allow audits and to ensure it is being done fairly.
- The right for workers to request a more predictable contract. It is expected that the Bill will allow workers on contracts such as zero-hours or variable hours contracts to request, after 26 weeks of employment, a contract that offers more predictability with regards to the hours of work and number of shifts each week. It is not clear at this stage whether employers will have the right to reject this request on if so, what grounds would be valid.
- The right to request flexible working. This is already a right, of course, but it currently only applies to employees with 26 weeks or more of continuous service. The Bill will seek to amend this so that employees can make the request from the first day of employment. It remains to be seen if this change will go through and it is likely to be met with significant opposition as a result of the impracticalities that a flexible working request made on the first day of employment will bring.
- Continuity of employment. Currently, a break of one full week is enough to break an employee’s continuity of employment. The Bill will look to change this so that a break of four weeks is required. In most circumstances, this should not make a difference to employers, but it would change the landscape for those employees who leave and want to very quickly return.
In addition to the changes that could be brought in by the Employment Bill, we also expect that we might see wider adoption of mandatory vaccinations. Currently, this applies to all care workers and anyone entering a care home. It is possible though that this will be extended to frontline NHS workers and the wider social sector. We will see more on this in early 2022.
Finally, there could also be changes to the position on workplace sexual harassment, with the government looking to introduce a duty on employers to prevent sexual harassment and new protections from third-party harassment. There could also be changes to the limitation period for associated employment tribunal claims, moving from 3 to 6 months for these claims.
What Could the Impact of These Changes be on Employers?
At this stage, it is difficult to say, largely because it is not clear what changes will be made in 2022 or beyond, and the extent of those changes. What is clear is that there will be more for employers to consider and pay attention to moving forward. In particular, the family-friendly legislation continues to change and grow and will, if all the changes above are made, become a very complicated area in which employers should be well versed on. Refusing an employee leave to which they are entitled, for example, could be very costly for employers.
Employment law is an area of law that is becoming increasingly complicated from year to year. It is also an area of the law that more often than not needs to be applied and adhered to by employers with little to no legal background or knowledge. The more complicated the law becomes, the more it becomes sensible to seek assistance from an expert. Having support from an adviser who knows the law, and can apply it for you, is invaluable.
Through 2022, if all goes as expected, there could be a whole raft of changes for employers to be aware of. Employment law is a complicated area with many pitfalls. We would highly recommend having Trusted Advisers in your corner to help you. Wilford Smith’s business-focused services specialise in Employment Law, Commercial Law, Company Law, Commercial Conveyancing, Regulatory and Criminal Investigations.
We can be your Trusted Adviser in all areas.
If you haven't already read our review of 2021, here is the link:
Wilford Smith's Employment Law Decision Spotlight for 2021