Top employment issues for 2022

You can access a transcript of the video here.

The future world of work

For office-based workers in particular, the pandemic has fundamentally changed the future world of work. The past few months have seen workers returning to the workplace but for many the traditional 9 to 5, 5 days a week in the office has been replaced by hybrid working. Many employers have introduced working models such as three days in the office and two days at home. Hybrid working strikes a balance by continuing the benefits of homeworking which many enjoyed during the height of the pandemic and the advantages of having staff in the office for networking and supervision of junior staff.

Although most employers will have in place a formal company-wide hybrid working policy, they will still need to decide how to deal with both statutory flexible working requests and informal flexible working requests which are outside the hybrid working policy. Clearly one size doesn't fit all, but, for example, they may consider that it will be administratively easier to have all such requests dealt with through the statutory process rather than different arrangements being informally agreed by individual managers. Adopting such a consistent approach will ensure that any further approved flexible working arrangements dovetail with the hybrid working policy and makes certain that staff are in the office for specific events such as departmental meetings. Furthermore such an approach will minimise the risk of potential discrimination claims that may arise in cases where similar requests receive different outcomes.

However, when deciding the correct approach to flexible working requests, it is possible that in 2022 the statutory regime may become even more flexible if the Government's plans set out in its consultation paper, Making Flexible Working the Default go ahead. Details of the proposals under consideration are set out in our client briefing here but some potential changes are making the right to request flexible working a "day one" right and changing the frequency that an employee can submit a request to work flexibly.

Mandatory vaccinations as a condition for attending the office

There has been a lot of news coverage about certain staff, such as care home workers, being required to be fully vaccinated against Covid-19 as a condition of continuing to work. Many employers are encouraging employees to get vaccinated but some employers want to go one step further and make vaccinations mandatory either for existing staff or new joiners or both. As the Government has not made vaccinations mandatory for all workers to return to work, this raises some tricky employment, health and safety and data protection questions for those employers who may want to introduce a mandatory vaccine policy or introduce a new contractual term into employment contracts.

One of those questions is whether requiring employees to be vaccinated can be a lawful and reasonable instruction. This will of course vary sector by sector but employers will have to consider whether they are able to establish a compelling reason for requiring employees to be vaccinated so that they can return to the office. Furthermore if employers can clear this hurdle, exceptions will likely have to be introduced for people with medical conditions or certain beliefs. If you are considering making vaccinations mandatory, we would be very happy to talk you through all of the other potential issues with this approach.

Business immigration and workforce mobility

With the UK's immigration system bedding down following Brexit, employers with a mobile workforce and those looking to attract talent into the UK will be pleased to learn that 2022 will see new immigration and visa routes being introduced.

The Scale-up Visa is due to be launched in spring 2022 and is aimed at attracting highly-skilled individuals to help the UK's fastest growing businesses. This fast-track visa will not require sponsorship and will be open to applicants who meet the language proficiency requirement and have a high-skilled job offer (with a salary of at least £33,000) from a UK business that satisfies the criteria of a scale-up company (for example companies that have grown at 20% a year over the previous 3 years). In addition, from spring 2022, the Global Business Mobility Visa will be available to help overseas businesses seeking to establish a presence in, or transfer staff to, the UK. This is likely to build on the existing intra-company routes available for global businesses.

Next year will also see changes to the right to work checks. Temporary adjustments were made in response to the pandemic such as a move towards some online checking facilities as well as temporary rules permitting remote checking of documents. These temporary adjustments will, however, come to an end next April and the good news for employers is that the Home Office has confirmed that where a remote check was carried out that a retrospective in person check will not be required. Also anticipated in spring 2022 is the Home Office's plans to increase the coverage of the digital online checking process, with enhanced security, information sharing and accessibility envisaged.

The introduction of a new single employment enforcement body

Last summer the Government confirmed that a single enforcement body will be established (possibly next year) combining and extending the enforcement remits of the three existing market enforcement bodies - HMRC National Minimum Wage Enforcement, the Gangmasters and Labour Abuse Authority and the Employment Agency Standards Inspectorate.

The objective is to improve the Government's ability to protect vulnerable workers . There will be a sharp focus on increasing compliance rates and this will be done by introducing a compliance notice system and extending civil penalties and the naming and shaming scheme. Clearly for employers there is a benefit of having one enforcement body implementing a clear and consistent approach. However, the proposals relating to the new powers and sanctions reinforce the need for employers to be cognizant of and ensure compliance with all their relevant obligations.

Sexual harassment in the workplace

No organisation wants to find itself dealing with allegations of sexual harassment in the workplace but unfortunately, as has been shown in recent times, it is still a reality that the workplace may not be a secure place for some. This has led the Government to publish its response to the consultation on sexual harassment in the workplace over the summer. Broadly the Government proposes to introduce a duty requiring employers to prevent sexual harassment, introduce protections from third-party harassment and it will look closely at extending the time limit for bringing Equality Act 2010 based cases to the employment tribunal from 3 months to 6 months.

Although we do not have a firm date on when these measures will be introduced (again 2022 is a possibility), employers should already be regularly reviewing their harassment policies to keep them up-to-date, communicating consistently to staff a zero-tolerance approach to all forms of harassment and frequently holding anti-harassment training sessions.

Post termination non-compete clauses

The Government's consultation on a possible reform of post-termination non-compete clauses in employment contracts closed early in 2021 and there seemed to be an appetite to explore all the available options which would encourage individuals to start new businesses and kickstart the UK's economic recovery following the pandemic.

One of the options was making post-termination non-compete clauses in contracts of employment enforceable only when the employer provides mandatory compensation during the term of the clause. The aim is to discourage use of such clauses "as standard" so that individuals have the freedom and flexibility to use their skills to drive the economic recovery.

Mandatory compensation could be complemented by other actions such as a requirement for employers to disclose the exact terms of the non-compete agreement to the employee in writing before the employment relationship is entered into and if they do not, the clause is unenforceable.

Although there have been no further developments since the consultation closed in February 2021, this is an area that may rear its head again next year. If this is the case, potentially a review of the non-compete clauses in employment contracts is on the cards so watch this space.

The additional bank holiday in 2022

Next year Her Majesty The Queen will reach her Platinum Jubilee and to celebrate this milestone there is an additional UK bank holiday on Friday 3rd June. Some employers will be considering how to deal with this extra bank holiday.

There is no statutory right for employees to have time off on public and bank holidays. However, employment contracts will usually set out whether employees are entitled to time off (with pay) on public and bank holidays. Where the employment contract states that an employee will be entitled to a set number of bank holidays or uses wording such as "usual bank holidays" then employers will have a discretion as to whether they will give their employees the extra day of holiday or if they will require employees to take a day's holiday, for example. If employers choose to do the latter, they must ensure that they provide adequate notice to their employees. Although they are only required to give notice equal to two times the number of days employees are being asked to take, it would be best practice to communicate the business's position as early as possible to avoid employee disappointment.

If you are unsure what the position is under the wording in your employment contracts, please do get in touch with us.

Please contact us if you would like further information on any of the issues raised above.