Employment law changes 2022: Mid-year progress report for HR

Author: Stephen Simpson

As we reach the midpoint of 2022, HR professionals would be forgiven for losing track of all the live employment law proposals and what they mean for their organisation. To assist HR with planning for the rest of the year and beyond, we round up the major employment law changes in the pipeline as of mid-2022.

Strengthening workplace sexual harassment laws

Legal timetable

XpertHR's legal timetable provides summaries of pending employment laws and regulations, with implementation dates.

What is changing?

The Government has mooted taking action to ensure that employers take all the steps that they can to prevent workplace sexual harassment. 

What are the main proposals?

  • Introduce a mandatory duty on employers to prevent harassment in the workplace.
  • Strengthen and clarify the law on third-party harassment in the workplace.
  • Introduce a statutory code of practice on sexual harassment at work.

What would this mean for employers?

Employers are already liable for harassment carried out by their employees at work, unless they have taken "all reasonable steps" to prevent the harassment. However, a positive duty on employers to take steps to prevent harassment should prompt employers to review their policies and procedures to ensure that:

    • the equality, diversity and inclusion policies that they have in place will meet the new requirements;
    • those policies are implemented in practice;

Did you know?

The Government has signalled its intention to consider if the employment tribunal time limit for bringing claims under the Equality Act 2010 should be extended from three to six months.

  • their workforce is made aware of the policies;
  • employees and line managers are provided with equality, diversity and inclusion training;
  • there is a system in place for dealing effectively with employee complaints; and
  • their policies are reviewed as appropriate.

HR professionals should also look out for the new statutory code of practice on sexual harassment. The Equality and Human Rights Commission is developing the new code and is expected to consult on a draft version before it is introduced.

Clarifying the law on settlement agreements

What is changing?

To tackle misuse of confidentiality clauses when workplace harassment or discrimination occurs, the Government has said that it plans to require employers to set out more clearly the consequences and limitations of confidentiality clauses in contracts of employment and settlement agreements.

What are the main proposals?

  • Ensure that a confidentiality clause cannot prevent an individual from making a disclosure to the police, regulated health and care professionals, or legal professionals.
  • Improve independent legal advice available to an individual when signing a settlement agreement.
  • Produce guidance on drafting requirements for confidentiality clauses.
  • Introduce new enforcement measures for confidentiality clauses that do not comply with legal requirements.

What would this mean for employers?

The changes would not prevent employers from making use of confidentiality clauses when an employee's employment ends.

For example, employers use confidentiality clauses to protect commercially sensitive information and prevent employees from sharing such information with their competitors. They can also help the employee to move on and make a clean break from the employer when the relationship has irrevocably broken down.

However, the changes would mean that employers would have to ensure that:

  • their confidentiality clauses do not prevent employees from making disclosures to the police, regulated health and care professionals and legal professionals; and
  • employees asked to agree to confidentiality clauses, whether that is at the beginning of their employment (within their contract of employment) or at the end (within a settlement agreement), are given clear advice on the consequences of doing so.

Altering the right to request flexible working

Did you know?

Despite the Government titling its consultation "Making flexible working the default", there is nothing in the Government's proposals that require employers to default to flexible working as a matter of course.

What is changing?

The Government is proposing to remove the requirement for employees to have 26 weeks' service to make a flexible working request and tweak how employers are expected to manage requests.

What are the main proposals?

  • Remove the requirement for employees to have 26 weeks' continuous service to be entitled to request flexible working, making the right to request flexible working a "day one" right.
  • Allow employees to make more than one statutory flexible working request every 12 months, with the number of requests employees can make up for debate.
  • Reduce the three-month time limit for employers to deal with statutory flexible working requests, with the new timeframe still to be decided.
  • Require employers to consider alternative working arrangements when rejecting a statutory flexible working request.

What would this mean for employers?

It is more important than ever that employers get their approach to flexible working right, given the sea change in attitudes towards flexible working (with the proliferation of the hybrid working model) and the competitive advantage that employers that offer flexible working can get in the labour market.

Organisational leaders and HR professionals can get ahead of the proposed legislative changes by:

  • considering if their organisation's flexible working policies could be enhanced by allowing employees to make requests from day one of employment;
  • thinking about whether their organisation could allow employees to make more than one request every 12 months, which would make their flexible working policies more generous than the current statutory scheme; and
  • reviewing how long on average their organisation takes to conclude requests and identify where the process could be streamlined, in anticipation of the possibility that the three-month time limit could be reduced.

Some organisations told us that they are seeing increased turnover as their organisation is either unwilling or unable to offer more flexible working arrangements and/or higher salaries to help retain employees.

Labour turnover rates: HR & Compliance Centre survey 2022

HR professionals have an important role to play in supporting their organisation's change of culture when it comes to flexible working, for example by:

  • putting the business case for flexible working to senior leadership;
  • training line managers on handling flexible working requests; and
  • if they have introduced a hybrid working model, ensuring its smooth running and the effective promotion of the availability of hybrid working as a candidate attraction and employee retention tool.

Expanding family-friendly rights

What is changing?

The Government has promised to introduce two new types of family-friendly leave - statutory carer's leave and neonatal leave.

What are the main proposals?

  • Introduce one week's unpaid leave each year for employees who are carers, for the purpose of caring for a dependant with mental or physical health needs.
  • Implement neonatal leave and pay to support new parents whose baby requires neonatal care following birth.

What would this mean for employers?

Employers should be prepared to incorporate the new types of leave into their family-friendly policies and procedures.

As it will be unpaid, statutory carers' leave should be the simpler of the two new rights for employers to administer. The other key aspects of the proposed new right are that:

  • carer's leave will be a "day one right", meaning that staff will not require a minimum period of service;
  • entitlement will depend on the relationship between the carer and the person being cared for, with a focus on dependants with a long-term care need or terminal illness;
  • eligible employees will be able to take five days' carer's leave per year, as individual or half days; and
  • employers will be able to ask employees to self-certify that they are eligible, with no evidential requirements (for example details of the dependants condition or caring activities being undertaken).

Neonatal leave will be a "day one right". Unlike carer's leave, neonatal leave will be paid. It is expected to be used mainly to assist new parents whose baby requires neonatal care in hospital.

Did you know?

The Domestic Abuse (Safe Leave) Act (Northern Ireland) 2022 paves the way for the introduction of right for victims of domestic abuse in Northern Ireland to take at least 10 days' "safe leave" during each leave year.

Neonatal leave will be available to parents of babies who are admitted up to the age of 28 days, where the baby has a continuous stay in hospital of at least seven full days.

Statutory neonatal pay, which would be set at the same rate as other family-friendly statutory payments, would have a qualifying period of 26 weeks' continuous service.

Notice and evidence requirements are expected to be "light touch" to take account of the sensitivity of the situation.

Pregnancy and maternity leave: extending redundancy protection

What is changing?

Employees on maternity leave already have the right to be offered any suitable alternative vacancy in a redundancy situation. However, the Government intends to extend this protection to cover the period from the employer finding out about the pregnancy to six months after the employee's maternity leave ends.

What are the main proposals?

  • Ensure that the redundancy protection period, which gives the right to be offered any suitable alternative vacancy in a redundancy situation, applies from the point that the employee informs the employer that she is pregnant (whether this is done orally or in writing).
  • Extend the redundancy protection period to six months after a new mother has returned to work, with the protection period starting once maternity leave is finished.
  • Mirror the extension of the redundancy protection period for those taking adoption leave and shared parental leave (but not paternity leave).

What would this mean for employers?

Employers would need to review their redundancy policies and procedures to ensure that they cover the right for those on maternity, adoption or shared parental leave to be offered any suitable alternative vacancy on redundancy.

HR professionals and line managers implementing a redundancy process would also need to ensure that they take account of the extended redundancy protection period where any employees at risk of redundancy are pregnant or have recently returned to work from maternity, adoption or shared parental leave.

The changes in relation to maternity leave would double the current period of redundancy protection from one year to around two years, assuming the pregnant employee advises the employer of their pregnancy at about the 12-week point and takes one year's maternity leave. This could substantially increase the number of employees who must be given priority for any suitable alternative vacancy on redundancy, particularly in workplaces where the majority of employees are women.

Addressing "one-sided flexibility" in working hours

Other proposals that could progress

  • Introducing new rules to ensure that tips are passed to workers in full.
  • Extending the time required to break a period of continuous service from one week to four weeks for calculating employment rights.
  • Widening the ban on exclusivity clauses, currently banned in zero hours contracts, to include contracts where a worker's guaranteed weekly income is less than the lower earnings limit for national insurance purposes.
  • Removing the restriction on agencies providing temporary workers to employers to perform the duties normally undertaken by workers taking part in industrial action.
  • Introducing a statutory code of practice on "fire and rehire", with employers acting in breach of the code facing an uplift of up to 25% in compensation awarded at a tribunal.
  • Replacing the Human Rights Act 1998 with a Bill of Rights. The Act contains important rights that affect workers, for example rights to: freedom of expression; a private and family life; freedom of association with others; and freedom of thought, conscience and religion.

What is changing?

The Government has suggested that it will legislate for the right for workers to "request a more predictable and stable contract" and be provided with "reasonable and recordable" work schedules.

What are the main proposals?

  • Provide workers with the right to request a more predictable and stable contractual working pattern after 26 weeks' continuous service.
  • Give workers the right to "reasonable and recordable" work schedules, to tackle the issue of workers being allocated shifts with limited notice, making it difficult for them to "plan their lives or find other work".
  • Define what counts as "reasonable notice" of work schedules, which might include a minimum amount of notice while also building in some flexibility (for instance for the emergency services).
  • Provide workers with compensation for shifts cancelled without reasonable notice.

What would this mean for employers?

These changes would particularly affect employers that are reliant on casual and zero hours workers. Employers with this sort of flexible workforce would have to tighten up their planning for work schedules and put in place a procedure to allow workers to request a more stable contract.

It is possible that this new "right to request" could be modelled on the right to request flexible working. This means that the employer would have at least to consider the worker's request and assess whether it can grant it. A positive outcome for a worker could be that the employer provides them with a minimum number of hours per week, or guarantees them work on certain days of the week.

There would be no obligation on the employer to provide a stable contract. Legislation would set out grounds on which it is permissible for employers to turn down a worker's request.

Reforming data protection laws

What is changing?

The Government is making wide-ranging changes to the UK data protection regime that will have a major impact on how personal data is managed in the employment context.

What are the main proposals?

  • Replace the requirement to designate a data protection officer with an obligation to appoint a senior individual to be responsible for data privacy management.
  • Remove the requirement to undertake data protection impact assessments and allow greater flexibility for data protection risk assessments.
  • Replace the current record-keeping requirements with greater flexibility to document the purposes of processing.
  • Lower the threshold for being able to refuse, or charge for, a subject access request to "vexatious or excessive", replacing the current "manifestly unfounded or excessive" threshold.

What would this mean for employers?

HR professionals should look out for developments related to the Government's Data Protection Bill and work closely with other parts of their organisation to prepare. This could include close collaboration with your organisation's privacy team and IT department to work out what the new legislation will mean for the processing of employment-related data.

While it is early days and details of the changes are scant, it is possible that they will allow employers to rethink:

  • how their data privacy roles and responsibilities are structured across the organisation; and
  • when and how they undertake data protection risk assessments in the employment context.

In relation to data subject access requests, the proposed changes may be good news for employers faced with requests that are unreasonable in nature and should be allowed to be refused. The Government has given the example of an employee leaving on bad terms and using subject access requests to disrupt their former employer.

Overhauling the requirement to produce modern slavery statements

Did you know?

In March 2021, the Government launched an online modern slavery statement registry where organisations can publish their annual modern slavery statements voluntarily. According to government figures, around 7,000 statements have been submitted covering over 23,350 organisations since the registry's launch.

What is changing?

There will be major changes to the duty on large organisations to publish an annual modern slavery statement. The changes will also bring large public-sector organisations within the scope of the duty to produce a statement.

What are the main proposals?

  • Extend the duty to publish an annual modern slavery statement to cover public-sector organisations with a budget threshold of at least £36 million per year. This includes local authorities, NHS bodies, police forces and central government departments.
  • Mandate the areas on which employers must report under the Modern Slavery Act 2015, rather than the reporting areas being recommendations only.
  • Introduce a shared reporting period of 1 April to 31 March for all organisations covered by the legislation, with a single annual reporting deadline of 30 September.
  • Require employers to upload their modern slavery statement to the central online registry, which is similar to the GOV.UK website where employers publish their gender pay gap reporting figures.

What would this mean for employers?

Public-sector organisations that are covered by the extension of the duty can begin planning for the publication of their first modern slavery statement. A good starting point is to introduce a process for gathering and collating the anti-slavery activities of internal departments and external suppliers, for the purpose of drafting the statement.

If already covered by the legislation, the employer should review the structure of their modern slavery statement to ensure that the six reporting areas (ie policies, structures, due diligence, risk assessment, training, and effectiveness) are already covered where relevant. Where an employer expects to be covered for the first time, it should begin collating the steps it takes in relation to the six reporting areas.

Given the increased public scrutiny that a single reporting deadline is likely to bring, HR professionals should liaise with their media/publicity department to ensure that their modern slavery statement, and the publicity around it, conveys the right messages.

What has already changed in 2022?

  • The rates of the national minimum wage increased on 1 April. The hourly increases included a rise in the rate for workers aged 23 and over (the national living wage) from £8.91 to £9.50.
  • On 3 April, the weekly rates of statutory maternity, adoption, paternity, shared parental and parental bereavement pay increased to £156.66 (up from £151.97).
  • The rate of statutory sick pay increased from £96.35 to £99.35 per week from 6 April.
  • New limits on statutory redundancy pay came into force on 6 April. The maximum amount of a week's pay for statutory redundancy pay calculations rose to £571 (up from £544) for redundancies taking place on or after this date.
  • The right to parental bereavement leave and pay was introduced in Northern Ireland. The right mirrors the entitlement in the rest of the UK - it is available to qualifying bereaved parents whose child dies, or is stillborn after 24 weeks of pregnancy, on or after 6 April.
  • The types of healthcare professional who are able to issue fit notes has been expanded. As well as doctors, nurses, occupational therapists, pharmacists and physiotherapists can issue fit notes from 1 July.