What's coming up for employers in 2022?
Starting somewhat inauspiciously with the spread of Omicron, it is clear that 2022 has not seen the back of the pandemic yet. Employers are clearly still concerned with wellbeing of staff, and how to consider how to optimise any hybrid working arrangements they have in place. We also appreciate other challenges such as recruitment and retention of staff. But, employment issues aside, what does 2022 have in store?
Temporary changes to fit notes
There has been a temporary change to the fit note regime which provides that an employee shall not be required to provide medical information in respect of the first 28 days of any spell of incapacity for work (an increase from the usual 7 day cut off). The increase is intended to increase GP capacity to support the Covid-19 vaccine booster programme by reducing the need for employees to visit their GP for medical evidence for the purposes of statutory sick pay.
The new 28-day period is limited to periods of incapacity for work starting during the period from 17 December 2021 to 26 January 2022, or which commence prior to 17 December 2021 but which have not lasted more than 7 days on that date (so that the requirement to provide medical evidence has not yet arisen). Any ongoing spells of incapacity which commenced prior to 26 January 2022 and are ongoing will be covered.
Social care immigration visa relaxation!
Care workers, care assistants and home care workers are to be added to the Shortage Occupation List and will become eligible for the Health and Care Visa for a minimum 12-month period in response to staff shortages. Inclusion on the Shortage Occupational List will stipulate an annual salary minimum of £20,480 for carers to qualify for the Health and Care visa. The temporary measures are expected to come into effect in early 2022 and will be reviewed after 12 months.
The government has stated that care providers who do not already hold a sponsor licence in the Skilled Worker route can register for one ahead of implementation. If they are new to visa sponsorship they will be supported through the process through a series of engagement activities in January and February to introduce them to the system.
Mandatory vaccination for front line health and care workers
Following an amendment on 31 January from the Health Secretary, Sajid Javid, mandatory vaccination will be scrapped across all settings (including care homes who have had to institute this policy since 11 November last year).
A consultation on ending vaccination as a condition of deployment (in relation both to care homes and the health and social care sector) will be launched prior to the Regulations being revoked, but will essentially just be a formality. The consultation (which has to take place for statutory reasons) will last for two weeks. In the meantime there will be no further enforcement of the Regulations.
The Health Secretary stated that when the Regulations relating to the health and social care sectors were laid before Parliament in November, the Delta variant of Covid-19 represented 99% of infections. As Omicron has since become the dominant infection the Health Secretary stated that it is right to review the policy to ensure that it is proportionate and balanced. He also stated that, if we see another dramatic change in the virus, the policy could be reviewed again.
Those care workers who left the sector will now be free to reapply for their jobs (assuming vacancies still exist). However, the Health Secretary has made it clear that the mandatory vaccination policy was right at the time for those care home workers who left their job rather than getting vaccinated
Gender pay reporting
The government has to review the gender pay gap regulations by April 2022 (within five years of the regulations coming into force). The purpose of the review will be to assess the extent to which the reporting requirement has achieved the objectives of the regulations, whether the objectives remain appropriate, and whether any unnecessary burden is placed on employers.
It's a moot point whether any of these developments will occur in 2022 or not, but they are all things that employers should have on their radar.
The government proposes to introduce a new Employment Bill which was first mentioned in the Queen's Speech delivered at the opening of Parliament on 19 December 2019. This will comprise a single enforcement body; the requirement for tips to go to workers in full; the right to request a more predictable contract after 26 weeks' service; the extension of redundancy protection to prevent pregnancy and maternity discrimination; a new right to neonatal leave and pay; making flexible working the default position, and introducing a week's leave for unpaid carers.
Following a consultation on the introduction of a single enforcement body to adopt a consistent approach across all enforcement areas (the concept is to have a single body to ensure that vulnerable workers are aware of and can exercise their rights) the government has announced its intention to introduce one and this will be legislated for when Parliamentary time allows.
The government has also confirmed that it will extend the period of redundancy protection for those on maternity leave, from the point an employee notifies their employer of their pregnancy until six months after the end of their maternity leave.
In terms of the new right to neonatal leave and pay, the government has responded to a consultation on the right (back in March 2020) and committed to introducing up to 12 weeks' leave and statutory pay for parents of babies in neonatal care as well as legislating to implement the entitlement in the Employment Bill. Neonatal leave will be taken after maternity and paternity leave and a set period will be prescribed in which neonatal leave and pay must be taken.
The government issued a consultation entitled, 'Making flexible working the default' which closed on 1 December 2021. The five proposals forming the basis of the consultation were making the right to request flexible working a day one right; whether the current business reasons for refusing a request all remain valid; requiring the employer to suggest alternatives; the administrative proceed underpinning the right to request flexible working, and requesting a temporary arrangement.
The government has confirmed that it will introduce an entitlement to carer's leave as a day one right for employees. The entitlement will be to take up to one week (5 working days) of unpaid leave per year. It will be available to be taken flexibly, either in individual days or half days, or in a block of one week. Legislation to introduce carer's leave as a day one statutory employment right will be brought forward when parliamentary time allows.
Duty to prevent sexual harassment in the workplace
The government has said that it will introduce a duty on employers to prevent sexual harassment, as well as explicit protections from third-party harassment, and that these changes will be introduced when parliamentary time allows. It will also consider extending the time limit for claims under the Equality Act 2010 from three to six months.
There is no detail of the proposed new duty on employers, other than it will require employers to take "all reasonable steps" to prevent workplace sexual harassment. The new duty would be enforceable by both the EHRC and by individual employees with employers potentially liable if they do not take reasonable steps to prevent harassment in accordance with a statutory code of practice. Similarly there is no detail of the protections to be introduced from third-party harassment.
The Women and Equalities Committee's inquiry into menopause in the workplace is examining the extent of discrimination faced by menopausal women at work and investigating how government policy and workplace practices can better support them. The Committee's recommendations are expected to be published in 2022 and could lead to changes to the Equality Act 2010 to better protect menopausal women suffering discrimination at work.
There are a few interesting cases to look out for over the coming months. The Court of Appeal is due to hear the case of Angard Staffing Solutions v Kocur later this month. The Employment Appeal Tribunal (EAT) held that agency workers do not have the right to be entitled to apply for, and be considered for, internal vacancies on the same terms as directly-recruited employees. The Court of Appeal will be reconsidering this, along with the issue of whether agency workers are entitled to work the same shift lengths as comparable directly recruited employees.
Back in October, the EAT heard the appeal against an employment tribunal's decision that a Christian doctor's belief that God only created males and females and that a person can't choose their gender was incompatible with human dignity and conflicted with the fundamental rights of others. The EAT's decision in Mackereth v Department for Work and Pensions is awaited with interest, especially since the EAT's decision in Forstater v CGD Europe and others last year. Here it was held that the claimant's belief that a person's sex is a material reality that should not be conflated with gender or gender identity, and that a trans woman is not in reality a woman, was a philosophical belief which qualified for protection under the Equality Act 2010.
Finally the Supreme Court heard the case of Harpur Trust v Brazel on 9 November 2021. The Court of Appeal found that a part-time music teacher should have her accrued holiday entitlement calculated in accordance with the 12-week averaging calculation contained under the Working Time Regulations 1998. The school had calculated her entitlement to holiday pay as 12.07% of the hours worked the preceding term, relying on Acas guidance which stated that the statutory holiday entitlement of 5.6 weeks equates to 12.07% of hours worked over a year. The decision in Brazel was limited to part-year workers (those who do not work a full working week, or who, for parts of the year, have no work at all). It is hoped that the Supreme Court will provide clarity on the calculation of holiday pay for such workers.
We'll keep you up to speed on these developments throughout 2022.