Employment Law: What to expect in 2022

While the Government’s Plan B restrictions have now ended, it’s impossible to say whether the effects of the pandemic might see a return of some in the future. Many employers have now adopted a hybrid home working approach where possible but the guidance or instruction to work from home could return at any point.

There has been a lot of debate about so-called “no jab no job” policies with currently only the care sector having a mandatory vaccination requirement. We may now find employers in other industries introducing mandatory vaccine policies and there’s little doubt that litigation will follow if employees lose their jobs over a refusal to be vaccinated.

It’s reasonable to expect more “Covid claims” to be brought in the Employment Tribunal. We’ve already seen a discrimination claim fail where the employee refused to return to work, claiming that her fear of catching the virus amounted to a philosophical belief. More recently, there has been a similar unsuccessful claim following a care nurse losing her job after refusing to be vaccinated on the basis this was against her Rastafarian beliefs.

Issues arising from furlough and health & safety at work are also likely to be amongst the hot topics for future litigation.

Flexible working has been the subject of consultation and the Government’s Employment Bill, which is currently expected to be published in 2022, could change this and make flexible working a “day one” right. This means there will be no minimum 26-week service requirement and employees could request to work flexibly (i.e. part-time, from home, condensed hours, job share, etc.) from the date they start their employment.

The Employment Bill is also expected to support those working variable hours by introducing a right for them to request “a more predictable contract” after 26 weeks’ service although it’s not entirely clear at this stage what this will look like.

There are also other measures expected to be introduced such as a right to unpaid care leave, neonatal leave, and extending redundancy protection for pregnant employees.

There has been a multitude of reports in the media about sexual harassment in the workplace. The Government has said that they are committed to introducing a proactive duty on employers to prevent this, so employers could be found liable even if an incident hasn’t actually occurred if they

have failed to take all reasonable steps to prevent it from happening. We can expect to see a new law at some stage to introduce this duty.

There will be an extra bank holiday on Friday 3rd June to mark the Queen’s platinum jubilee. Now is a good time to review employment contracts for new starters to consider how holiday entitlement is covered. Depending on the drafting, some employers may find themselves having to grant an additional days’ leave for employees, while others could include it as part of the existing entitlement.

While it’s common for employment contracts to include restrictions preventing employees from working in competition with their employer if their employment ends (so-called “non-compete” restrictions), their enforceability can be questionable and there has been a consultation to consider whether such clauses should be banned altogether. This is currently closed with no date as yet for further action.

Throughout the Covid-19 pandemic, the Home Office adjusted its normal procedure for right-to-work checks to enable them to be undertaken remotely. From 5th April 2022, this temporary measure will come to an end and employers must return to full right-to-work checks which require either a manual check using original documents or an online check using an online checking service.