Employment Law Changes to look out for in 2022
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2021 has been another very difficult year for HR issues in your smaller business, especially with the new norm of lockdowns, self-isolation, working from home, and furlough.

2022 looks set to be another challenging year as we continue to deal with the effects of Covid-19 and increasingly adapt to new ways of working.  Add to this the uncertainty about whether a number of government planned changes to employment law will get the space to happen in 2022, and you can be forgiven for feeling weary of it all!

Here at citrus HR, we continue to help our customers with regularly updated support and advice on HR changes and challenges.  We’ve produced this handy guide to the highlights of what we know will definitely change in 2022, and a heads up about other possible changes that might be coming your way soon. We’ve also highlighted some key changes caused by the effects of the pandemic.

If you think we might be able to help you steer your path through 2022, do get in touch .

What’s definitely changing…

1 – Increases to minimum wage and statutory pay rates

2 – Increases to National Insurance Contributions

3 – Increased support for skills training and apprenticeships

4 – Scale-up visas for fast growing companies to bring in highly skilled talent from abroad

5 – Mandatory Covid-19 vaccinations for NHS staff performing regulated activities

6 – Changes to right to work checks after the expiry of temporary remote checks introduced because of Covid-19

7 – Changes to bank holidays in May and June for the celebration of the Queen’s Platinum Jubilee

What could well change in 2022…

8 – One week’s additional unpaid leave entitlement per year for carers

9 – Making flexible working the default position

10 – A new right for workers to receive their tips in full

11 – A new legal duty for employers to protect workers from harassment

12 – Possible changes to the UK data privacy regime post Brexit

13 – Possible changes to holiday pay calculations for part-year workers

Less likely possibilities to change in 2022…

14 – Extended redundancy protection if you are pregnant or on maternity leave

15 – Allowing parents to take extended leave for neonatal care

16 – The right for workers to request a more ‘predictable’ contract

17 – A new, single enforcement body for employment rights

18 – Greater clarity on the different status of workers and the self-employed

19 – New rules on post termination non-compete clauses

Changes related to Covid-19…

20 – How to bed in new hybrid working arrangements

21 – Guidance on Fire and Re-hire practices

22 – Long Covid as a potential disability

 

What’s definitely changing…

  1. Increases to National Living Wage and National Minimum Wage Rates and Statutory Rates for Maternity, Family Leave, Sick Pay and Redundancy Pay

From 1st April 2022 minimum wage rates will increase as follows:

  • Workers aged 23 and over – from £8.91 to £9.50
  • Workers aged 21 to 22 – from £8.36 to £9.18
  • Workers aged 18 to 20 – from £6.56 to £6.83
  • Workers aged 16 to 17 – from £4.62 to £4.81
  • Apprentices – from £4.30 to £4.81

The following statutory rate increases are also expected to apply from April 2022:

  • The weekly rate of statutory sick pay will be £99.35 (up from £96.35). The current rule change caused by the pandemic requiring SSP to be paid from Day 1 rather than Day 4 is set to end on 25th March 2022 unless there is a further extension.
  • The weekly rate of statutory maternity pay, maternity allowance, statutory paternity pay, statutory shared parental pay, statutory adoption pay and statutory parental bereavement pay will be £156.66 (up from £151.97).
  1. Increases to National Insurance Contributions

From April 2022, you will also need to factor into your payroll calculations a 1.25% increase in National Insurance contributions (NICs) for employers as well as employees. This was announced by the government in September 2021 to help pay for increased health and social care costs.This increase will then be replaced by a dedicated and ringfenced Health and Social Care Levy in April 2023.

  1. Increased support for skills training and apprenticeships particularly for entry level roles

In his October Budget, the Chancellor confirmed some previously announced initiatives and some additional funding for skills training and support for apprenticeships into 2022.  Skills training initiatives include the expansion of T Levels and Skills Boot Camps.  In addition to the continued meeting of 95% of apprenticeship training costs for employers who don’t pay the Apprenticeship Levy, the Chancellor also announced the extension of the £3,000 apprenticeship hiring incentive for employers who hire an apprentice of any age to start employment by 31st January 2022, with an apprenticeship start date before 31st March 2022.

  1. Scale-up visas for fast growing companies to bring in highly skilled talent from abroad more quickly and easily

A new scheme of fast-track visas is due to be launched in spring 2022. To be able to take advantage of the scheme, your business will need to have an annual average revenue or employment growth rate over a three year period of more than 20% and a minimum of 10 employees at the start of that three year period. The job applicant must have proficiency in English language and a role with a starting salary of at least £33,000 pa.

  1. Mandatory Covid-19 vaccinations for NHS staff performing regulated activities

The requirement for care homes only to allow entry to anyone working in the care home if they are fully vaccinated against Covid-19 or exempt, came into effect on 11th November 2021. This principle is now being extended to those who have direct contact with patients and service users working in health and social care settings whereby they will need to be fully vaccinated (or exempt) by no later than 1st April 2022.  This means that the first dose of the vaccine will need to have been given by 3rd February 2022.

  1. Changes to right to work checks after the expiry of temporary remote checks introduced because of Covid-19

Owing to the impact of the pandemic, you can currently carry out remote checks of right to work documents when a new member of staff starts with you using video calls and scanned documents. This temporary process was due to end on 5th April 2022. The Home Office has recently announced that from 6 April 2022, the right to work of those who hold a biometric residence card (BRC), biometric residence permit (BRP) or frontier worker permit (FWP) can only be done online. It will no longer be an option to complete a manual right to work check using a physical BRC, BRP or FWP. And there will also be a new scheme for checking the right to work of British and Irish Nationals using government-certified technology.

  1. Changes to bank holidays in May and June with the addition of an extra day for the celebration of the Queen’s Platinum Jubilee

An additional Bank Holiday has been announced for 2022 to mark the Queen’s Platinum Jubilee.  The normal Spring Bank Holiday on the last Monday in May is being moved to Thursday 2nd June, and then an additional Bank Holiday will take place on Friday 3rd June. Whether your employees are automatically entitled to take that extra day’s holiday will depend on the specific wording about holidays and Bank Holidays in your employment contracts, so it is definitely worth checking carefully.

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What could well change in 2022…

  1. One week’s additional unpaid leave entitlement per year for carers

The government has stated it intends to introduce a Day 1 right for employees to take an additional week’s unpaid leave per year, if they are the carer of a dependant with long-term care needs.  The purpose of the leave will be to provide care to the dependant, or arrange care for them. The current proposal is that leave will be able to be taken flexibly, in individual days or half days, or all together in one week. An employee would need to give notice and the employer may, in some circumstances, be able to postpone the period requested.

  1. Making flexible working the default position

The government is currently considering introducing the right to request flexible working as a Day 1 right, (currently an employee needs to be employed for 26 weeks before making a formal request). They are also looking at reducing the time frame for dealing with requests (currently 3 months), and requiring employers to suggest alternative proposals if they can’t accommodate the original request.

  1. A new right for workers to receive their tips in full

The government has said they intend to bring forward measures to require employers to pay all tips and service charges to workers, in full.  This process would be supported by a statutory Code of Practice and rights to request information about tipping.

  1. A new legal duty for employers to protect workers from harassment

The government confirmed in July last year that they intend to introduce new law requiring employers to prevent sexual harassment in the workplace, and specific legal protections from third-party harassment.  This would have a statutory code of practice attached to it for guidance.

  1. Possible changes to the UK data privacy regime post Brexit

The government would like to give organisations more control and flexibility over data privacy mechanics and to reduce the administrative burden and other headaches created by GDPR. A government consultation on possible changes to the data privacy regime in the UK closed in November 2021 and the representations are currently being considered.  As ever the devil will be in the detail and there will be a need to maintain sufficient levels of protections that the UK / EU Adequacy decision stays in place.

  1. Possible changes to holiday pay calculations for part-year workers

We are expecting the Supreme Court decision in the case of Harpur -v- Brazel to be published in 2022, following a hearing in November 2021. The decision being challenged was that a music teacher on a zero hours contract who worked irregular term-time hours still accrued 5.6 weeks of holiday each year even though she didn’t work all year round. Also it had been decided that her holiday pay should have been based on an average week’s pay multiplied by 5.6, rather than using the usual ‘formula’ of 12.07%.  The result was payment of a higher rate of holiday pay than that of a full-time equivalent staff member.

It is hoped that the Supreme Court decision will give clarification not just for part-year workers, as in this case, but also for those on other forms of zero hours contracts, and temps and umbrella workers.

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Other less likely possibilities for change in 2022…

  1. Extended redundancy protection if you are pregnant or on maternity leave

The government has previously proposed to extend existing maternity leave redundancy protection to cover pregnant employees from the date they notify the employer of their pregnancy and for a period of six months after the end of their pregnancy.

  1. Allowing parents to take extended leave for neonatal car

Also previously proposed by government, this would be a new right for parents to take an additional week of leave for every week their baby is in neonatal care, up to a maximum of 12 weeks. It is likely that the leave will have to be taken in a continuous block of one or more weeks. The leave would be added on to the end of the parent’s period of maternity or paternity leave and would be available to all employees.

  1. The right for workers to request a more ‘predictable’ contract

This previous government proposal was aimed particularly at those with variable and unpredictable hours like zero hours workers, and looked at a right to request a more more predictable and stable contract after 26 weeks’ service.

  1. A new, single enforcement body for employment rights

The government has previously consulted on the creation of a single body to enforce minimum wage rules, pursue unpaid tribunal awards and the tribunal penalty scheme, regulate statutory sick pay and publicise employment rights generally.

  1. Greater clarity on the different status of workers and the self-employed

Given the ongoing uncertainty around gig economy cases like those involving Uber and Deliveroo drivers, it had been hoped that the government would seek to act on the recommendations of the 2017 Taylor Review of modern working practices, to make it clearer how worker status should be distinguished from those who are genuinely self-employed.  But it currently feels unlikely that this will happen any time soon.

  1. New rules on post termination non-compete clauses

The government has previously consulted on possible changes to post termination non-compete clauses in employment contracts. The possibilities under consideration ranged from banning these clauses altogether, to requiring employers to compensate employees for the duration of the clause, similar to the position in Germany, France and Italy.

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Changes related to Covid-19

  1. How to bed in new hybrid working arrangements

If you have been able to get staff working effectively from home during recent lockdowns and guidance to work from home where possible, 2022 might be the year to try to put in place a hybrid working scheme as a more permanent arrangement. This would allow you, for example, to set any minimum requirements you wish to impose for coming into the workplace and it would also help to ensure consistency of treatment.  We can help you with the considerations you need to factor into any new scheme and how it might work, as well as a hybrid working policy and any changes to staff contracts that might be needed.

  1. Guidance on Fire and Re-hire practices

The pandemic has increased the pressure on many organisations to consider making employment contract changes for existing staff to cope with the fast-changing economic picture. This has led to reports of increased Fire and Re-hire practices from some employers trying to force through the changes they want to see. As a reaction to this and prompted by government, Acas has now published new guidance in November 2021 – Making changes to employment contracts – employer responsibilities – emphasising the need for employers to explore all other options first before considering firing and re-hiring on different terms.

The advice is to have meaningful consultation with staff, and make every effort to reach agreement on any contract changes. This is what we would always recommend as the best way forward and we can help with this process.

  1. Long Covid as a potential disability

There has been some discussion as to whether Long Covid will be specifically identified as a disability for an employee, and it is as yet too early to have seen any court cases looking at this. The general test remains whether the condition has a substantial and long term negative effect on the person’s ability to do normal day-to-day activities. Long term means likely to last for at least 12 months. If you have any staff member suffering from Long Covid, it is probably worth considering, in any event, if there are any reasonable adjustments that you can make to enable them to continue or return to work successfully.

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As you can see, we are already listing 22 employment law changes to be aware of or look out for in 2022, even if there is still a great deal of uncertainty about whether some of them will happen in the next year. And that’s before we factor in any further announcements of changes by the government as they deal with new surges of Covid-19 infections. So, there’s plenty to keep on top of as the year progresses.

If you would like help and support on the practical implications for your business any of these changes and a heads up in advance to help you prepare for them coming into force, we can help.

The content of this blog is for general information only. Please don’t rely on it as legal or other professional advice as that is not what we intend. You can find more detail on this in our Terms of Website Use. If you require professional advice, please contact 0333 014 3888 or email info@citrushr.com.

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