Employment issues and employment law – what’s happening in 2022

UK employment law changes 2022HR has been largely in reactive mode across the past two years and this year seems to be more of the same, however, with a little understanding and planning we can take back some control to alleviate some of the stresses and strains. Here is our (easy to follow) summary of what may be in store for us across the next 12-24 months, including the introduction of the “Employment Bill” which is set to change some of the current workplace employment rights.

Recruitment and Retention

If you would like to stop throwing money down the recruitment black hole, endlessly re-recruiting because staff are just not staying, perhaps it’s time to re-focus?

People generally stay with their employer because they are engaged (in its simplest form engagement is about being emotionally connected to the team and company). However, whilst “90% of business leaders say that engagement impacts on business success but 75% have no engagement strategy” (Source: ACCOR).

What is your engagement strategy and how much might it save you (time and stress) this coming year if you could halve your resignations?

Please do ask us for a facilitated workshop if you would like us to work with your HR team or managers in developing an Engagement Strategy for either individual teams or the wider business.

P&O redundancies

No doubt you will all have read about the P&O redundancies saga, with 800 staff laid off instantly and replaced with very low paid offshore agency workers. The CEO of P&O has advised parliament this week that they deliberately did not consult with staff or unions about pending redundancies as required by law as they viewed their proposals so extreme that no consultation would be of value.

As a result of this happening, the Government intends to introduce new Statutory Code of Practice for employers. This would mean stricter tribunal conditions when evaluating fire-rehire situations and less leniency when considering the process employers have followed to enforce changes to contractual terms.

It will be interesting to see what long term reputational damage their approach to the law and to employee relations will be, if any. The CEO this week stated that without such a drastic changing in their resourcing policy the business would not be able to stay afloat after the economic hits of the pandemic, meaning that more jobs have been saved by this dramatic move, than lost.

Whether you believe that or not, for those HR professionals reading this our question to you is would you put aside your principles in respect of how you treat employees in order to save the business and the employment of thousands? Or would you dig in and say, ‘the law is the law’. Commercial HR v Best Practice HR in action?!

Whatever your answer, our advice to everyone today is to be mindful of the employee relations. Ten years ago, a client of ours thought they had pulled a masterstroke (totally against our advice) with the way they selected out 50% of staff for redundancy. What they did was lawful in that case, but so brutal (emotionally) that the 50% who remained after the culling all resigned in the following 6 months, causing a heap of issues around knowledge, customer service, quality etc. How good are you at balancing the Employment Law requirements with Employee Relations needs?

Data Protection

The ICO is expected to publish an updated code in 2022. We think that this will address various data protection issues including recruitment, workers’ health, employment records and employee monitoring. This will be the first update since 2018 so watch this space but the following statement from John Edwards, our new Information commissioner in his first speech (March 2022) gives us some indication of his intentions, “I want to reassure you that my focus is on bringing certainty in what the law requires of you and your organisations, and in how the regulator acts. And certainty too for people about what their rights are and what they can expect from their regulator.”

New Employment Enforcement Body (Employment Bill 2022)

For any employee who has won an award at Tribunal but who is still waiting years down the line for the money to materialise, they will know that we have had gaps around ‘enforcement’ in the UK for a long time. Enforcement, in our view, has been somewhat scrappy and disorganised or, in some cases, overly complicated however this new body will tidy some of this up and create greater clarity and accountability.

Interesting fact: It has been previously estimated that up to 50% of all employment tribunal awards go unpaid.

This new enforcement body will replace the Employment Agency Standards Inspectorate, the Gangmasters and Labour Abuse Authority and HMRC’s National Minimum Wage Team and will likely have various areas of responsibility including.

  • Unpaid tribunal awards
  • Statutory sick pay
  • Holiday pay
  • National Minimum wage
  • Modern Slavery

A broader look at The Employment Bill 

Aside from an enforcement body, HR teams need to ready themselves for some major new legislation arising out of the Employment Bill – probably later this year or early 2023. The second reading is due late May.

The following has been taken directly from the Parliament website and sums up what the Employment Bill is intending: “A Bill to make provision about the rights of workers, including to negotiate pay and join trade unions and employee associations; to amend the definition of worker; to make provision about the employment rights of members of the armed forces; to make provision about employee representatives on company boards; and for connected purposes.”

Key reforms we understand the bill will focus on:

  • The establishment of a single labour market enforcement agency, responsible for enforcing basic rights for vulnerable workers (as detailed more above)
    • HR Action – none unless you know you are operating in places on the edges of laws around NMW, holiday, sick pay etc
  • The right for all workers to request a more predictable and stable contract after 26 weeks’ service
    • HR Action – audit your fixed term and other short-term contracts to review your exposure in this area
  • Requiring employers to pass on all tips and service charges to their workers
    • HR Action – none unless you do not already pass on all tips and service charges in which case consider the impact on your contract, pay levels, pay calculations, profit margins etc
  • Extending redundancy protection for parents i.e. the right to be offered suitable alternative employment, protection for pregnant employees and for six months after their return from maternity leave plus protection for those taking adoption/shared parental leave
    • HR Action – a review in due course of your family policies and procedures
  • Making flexible working the default position
    • HR Action – let’s wait for detail around this as clearly this can impact in many ways
  • Restricting employers’ usage of NDAs (non-disclosure agreements) in Settlement Agreements and other legal documents
    • HR Action – review where you use NDA’s and assess whether their usage can always be justified. This may be something you will need to reconsider in due course.
  • A new right for carers to take one week of unpaid statutory leave each year
    • HR Action – a review of family and caring policy and procedure once we have the detail
  • A new right for parents to take statutory leave of up to 12 weeks for neonatal care (as this relates to newborn babies (premature and/or sick) clearly there will some overlap with maternity leave)
    • HR Action – a review of family policy and procedure once we have the detail
  • Workers on Boards – this has so often been raised across the past 20 years or so but we are seemingly creeping ever closer to the time when there is legislation around having workers on boards
    • HR Action – consider your current staff/employee representation forum and whether the remit for that group is still appropriate for today’s workplace. If you don’t have a forum, consider introducing one and if your forum is stale and lacklustre in terms of output, why not ask us about how to do a revamp?
  • A changed approach to the management of sexual harassment – see below.

Sexual Harassment Legislation

Although employers often defend claims saying, “we took all reasonable steps to prevent harassment in the workplace” it is our understanding that changes within the Employment Bill will put employers under pressure to do more to prevent sexual harassment in the workplace.

HR Action: we anticipate that employers will be expected to have an anti-harassment policy in place and have rolled out training for all employees on that. Jaluch has anti-harassment eLearning, available soon, please do ask for details of either our off the shelf or bespoke options.

Some businesses will also need to smarten up their act as the legislation is expected to also introduce protection against third party harassment, such as for consultants, customers and clients.

Critical will be a requirement for employers to take ‘all reasonable steps’ to prevent sexual harassment from occurring.

April 2022 changes to Statutory Pay

  • Statutory sick pay: increases to £99.35 per week
  • Statutory maternity, paternity, adoption, shared parental pay, and maternity allowance: £156.66 per week
  • National Minimum Wage increases:
    • £9.18 per hour for 21 – 22 year olds
    • £6.83 per hour for 18 – 20 year olds
    • £4.81 per hour for 16 – 17 year olds/apprentices
  • The National Living Wage for workers aged 23+ increases to £9.50.

Pay Gap Reporting

After deadlines were extended last year, in 2022 we return to the normal timelines so public sector have to report by 30 March, private sector employers (and voluntary organisations) by 4 April.

Note: we are expecting some of the rules around gender pay gap reporting to be reviewed this year. Watch this space!

Ethnic Pay Gap Reporting

This is on its way however, some employers are already intending to start providing information ahead of the law coming into force. Note that the Commission for Race and Ethnic Disparities has recommended any such reporting remains voluntary for now. That said, increasingly job applicants and employees are expecting their employers to publish data and be transparent with ED&I practises so pressure may come more from this direction rather than any legal requirement to publish.

Interesting Fact: in the most recent SurveyMonkey workforce survey 80% of staff said that they wanted to work for an employer that values diversity, equity and inclusion.

Disability Workforce Reporting

As with Ethnic Pay Gap Reporting there is interest in Disability Workforce reporting and consultation on this is currently ongoing. Watch this space for a government view on the way forward around July time.

Right to Work Checks

UK employers are required by law to ensure employees have the correct right to work status before they commence employment. We know there are still a lot of HR teams who take the view that checking right to work can take place across the first few weeks of employment and that there is no real rush – be careful not to expose your business to any fines should it be found you have not been doing checks ahead of employment beginning as the law is crystal clear on when they must be done.

From 6th April 2022 right to work checks are changing for certain types of employees. Ideally, we would move over to digital checking for everyone however there is a cost that will be incurred if we include UK nationals so, at this stage, we will have to work with two different processes:

For UK nationals: The Govt. has extended until September 30, 2022 the temporary measures allowing businesses to complete the right-to-work checks via video call and without requiring hard copies of the required documentation. We have no information currently about what will happen after 30 September.

For migrants: from April 6 2022, employers will need to conduct an online right-to-work check. No manual checks will be permitted after this date, so you must use the online checking process.

Note: any manual right-to-work checks undertaken before April 6, 2022 will remain valid.

Visit Gov.uk for further info.

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