Employment Insight - What to expect in 2022

The pandemic has undoubtedly shifted the approach from many employers' to flexible working and the expectations of employees for flexibility. A response to the government's consultation on flexible working, which included proposals to introduce a right to request flexible working from 'day one' of employment and to make more than one application each year, is expected in 2022. The proposals would still allow employers to reject a request on the basis of one of the statutory reasons, which cover the vast majority of circumstances, so despite its aspirational name ('making flexible working the default') it is not likely to be a significant change for employers used to dealing with flexible working requests. 

The usual swathe of statutory pay increases are due to come into force in April 2022, with the National Living Wage set to increase by 6.6% to £9.50 per hour for workers aged 23 and over. Full details of the national minimum wage rates are available here. These increases will be accompanied by the increases to statutory pay rates including sick pay and family friendly pay, which are yet to be announced.

The social care levy is due to be introduced in April via an increase in National Insurance contributions of 1.25%. This will place some additional pressure on employees' wages, with the average basic rate tax payer paying an additional £180 in National Insurance contributions and the average higher rate tax payer paying an additional £715. This change will be in place for the 2022/2023 tax year before being replaced by a new, separate levy. 

It is expected that the requirement to pay statutory sick pay from day 1 of absence where an employee is absent for Covid-related reasons will continue for the time being. 

There is some good news for employers, however, in the form of the Covid-19 statutory sick pay rebate scheme being reintroduced from mid-January. The scheme previously allowed employers with fewer than 250 employees to claim back up to 2 weeks' of SSP for each employee who was eligible to be paid sick pay due to Covid-19. Further information is expected to be published here shortly.

There will be an additional public holiday this year, on Friday 3 June, to mark the Queen's platinum jubilee. The late May bank holiday has also been moved to Thursday 2 June for a 4-day weekend. Whether employers are required to give staff this additional day off will depend on the drafting of their employment contracts. These should be checked in advance so that employers can notify staff if they are required to use a day's holiday for the additional bank holiday. 

Legislation is expected, possibly in the Employment Bill, which will require employers to pay the entirety of tips paid to hospitality staff except where deductions are made for tax. A new statutory Code of Practice on Tipping will be published and employers will be required to publish a policy setting out how they will distribute tips. 

The Pregnancy and Maternity (Redundancy Protection) Bill is expected to proceed through Parliament this year. If passed, it will prohibit employers from making employees redundant during throughout their pregnancy and for six months after they return from maternity leave, except in specified circumstances. 

The government has also indicated that it intends to extend the period of redundancy protection for pregnant women and also to new parents as part of the Employment Bill but it is unclear how this will be taken forward in light of the above Bill. 

Some further rights are expected to be introduced, most likely in the Employment Bill (which may or may not be published this year) for working parents/carers, including:

• Statutory neonatal leave and pay for up to 12 weeks for parents of babies requiring neonatal care. 
• Statutory leave for unpaid carers up to 1 week per year. This leave will be unpaid. 

We expect the government to issue its response to the consultation, which closed in early 2021, on measures to reform post-termination non-compete clauses in employment contracts. The consultation sought views on restricting the use of non-compete clauses and the introduction of other measures such as:

• Introducing mandatory financial compensation for the duration of post-termination restrictions.
• Requiring employers to disclose the exact terms of the non-compete clauses in writing before an employee enters the employment relationship. 
• Introducing statutory limits on the length of non-compete clauses. 

It is expected that legislation aimed at preventing misuse of confidentiality clauses and non-disclosure agreements will be published this year, following a consultation in July 2019. It is expected that the legislation will include a requirement for individuals to receive independent legal advice before they sign a non-disclosure agreement (NDA) and new enforcement measures will be introduced where NDAs in employment contracts or settlement agreements do not comply with legal requirements. 

The government has committed to making two key changes to the law on harassment; introducing a new proactive duty on employers to prevent sexual harassment in the workplace and reintroducing statutory protections for employees if they are harassed by third parties such as clients or customers. These changes may be introduced in the Employment Bill or in separate legislation.

The Equality and Human Rights Commission is also expected to begin consulting on the new Code of Practice on Harassment. The Code is likely to expand on the technical guidance that it published prior to the pandemic which was intended to provide employers with guidance on managing harassment in a 'post #metoo' environment.  

Following its consultation on reform of the UK data protection regime, the government is expected to introduce changes to the current legislation with the aim of reducing the burden on businesses and barriers to innovation. Details of these changes will be published in a response to the consultation prior to being introduced. 

The Information Commissioner's Office (ICO) is also expected to publish its revised Employment Practices Code, which will replace the previous version which has not been updated since the introduction of the GDPR and Data Protection Act 2018.