Employment law: what to expect in 2022 and beyond

As we enter the final months of the year, Liz Stevens and Georgia Hunt of Birketts LLP highlight what employment law changes we can expect in 2022 and beyond.

What employment law changes will there be in 2022?

Over the last two years, the COVID-19 pandemic has meant that many of the previously anticipated employment law changes have been delayed or postponed. With the hope that we are starting to see the end of the pandemic restrictions, 2022 should see legislative developments start to progress further.

In this article we look at some of the confirmed and proposed developments in employment law that businesses need to be aware of, due to take effect in 2022 and beyond.

1. Mandatory vaccination

From 11 November 2021, as a result of The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021, all care home workers and anyone entering a care home must be fully vaccinated against COVID-19, unless they fall within one of the exemptions, including medical exemption.

ACAS has published guidance which lists those to whom the law applies, as well as any exemptions. For more information, please refer to the operational guidance published by the Department of Health and Social Care.

A government consultation on whether to extend compulsory vaccination to frontline NHS staff and the wider social care sector has recently ended. The government’s response has not yet been published but indications suggest that statutory provisions will be introduced in early 2022 to extend mandatory vaccination to this sector.

2. Gender pay gap reporting

Since 2017, employers with 250 or more employees have been obligated to publish an annual report containing data on their gender pay gap. Due to the pandemic, enforcement of the reporting deadline this year for both public and private sector organisations was extended by six months to 5 October 2021.

In 2022, deadlines are expected to revert to the normal timescales:

for public sector employers, the deadline is 30 March 2022 with a snapshot date of 31 March 2021
for private sector employers and voluntary organisations, the deadline is 4 April 2022 with a snapshot date of 5 April 2021

A new toolkit has recently been published jointly by the Chartered Management Institute (CMI) and Equality and Human Rights Commission (EHRC) to support organisations in tackling their gender pay gap.

3. Workplace sexual harassment

On 21 July 2021, the government published its response to the consultation on workplace sexual harassment, which was launched in July 2019.

It confirms that the government will introduce a duty on employers to prevent sexual harassment and new protections from third-party harassment, “when parliamentary time allows”. It is also “looking closely” at whether to extend the time limits for bringing any claim under the Equality Act 2010 from the current 3 months to 6 months.

A new statutory code of practice will be published to support the duty to prevent sexual harassment, along with accessible guidance for employers. It is likely that this new duty, as well as protections from third party harassment, will apply subject to an ‘all reasonable steps’ defence. It has yet to be confirmed when this new duty is likely to take effect; draft legislation to implement the new duty has not yet been published, but is anticipated in 2022.

4. New right to carer’s leave

In September 2021, the Government published its response to the 2020 consultation on carer’s leave, confirming that it plans to legislate an entitlement to carer’s leave for employees as a ‘day one’ right.

The leave will consist of one week (up to 5-working days) of unpaid leave per year for those employees with long-term caring responsibilities, to be taken in full or half days. The leave can be taken to provide care, or arrange care, for a person with a long-term care need, such as an illness or injury or issues relating to old age. Employees will be required to give notice that is at least twice the length of the time being requested as leave, plus one day.

This new right is likely to be included in a forthcoming Employment Bill (see below).

5. Tips and gratuities

In September 2021, the government published its response to the 2016 consultation on tipping, gratuities, cover and service charges.

The government has confirmed its intention to include measures in the anticipated Employment Bill to ensure that workers in the hospitality sector retain tips on a fair and transparent basis. Employers will be required to have a written policy on tips and keep a record of how tips are dealt with. There will also be a new statutory Code of Practice on Tipping for employers to have regard to, which will replace the existing voluntary code.

6. Neonatal leave and pay

Following a 2019 consultation, the government’s response in March 2020 confirmed its intention to introduce statutory neonatal leave and pay for parents of babies requiring neonatal care. This commitment was reiterated by the government in March 2021 during a parliamentary debate and will be included in the forthcoming Employment Bill (see below).

Parents will have the right 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. Those with a minimum qualifying period of 26 weeks’ service and who earn above the minimum pay threshold will be entitled to receive pay for the neonatal leave period at the current statutory rate.

7. Right to request flexible working

A new consultation has been published on proposals to extend the existing right to request flexible working from ‘day one’ of employment. The consultation is seeking views on how to make flexible working the ‘default position’, which was a manifesto commitment by the government in 2019.

The consultation makes it clear that while the government’s ambition is to make flexible working the default position in the workplace, it is not considered practical or desirable to remove the employer’s ability to turn down a request. It will remain a ‘right to request’ on the part of the employee, to initiate a conversation between employer and employee on how to make a flexible working arrangement work.

The consultation closes for responses on 1 December 2021. It is likely that the any statutory amendments that are confirmed following this consultation will be included in the anticipated Employment Bill (see below).

8. New single labour market enforcement body

On 8 June 2021, the government published its response to the consultation concerning the proposal to create a single enforcement body, confirming that the body will bring the following three existing bodies into one organisation with extensive powers to protect employment rights and improve employers’ compliance:

HMRC National Minimum Wage Enforcement
Employment Agency Standards Inspectorate (EASI)
Gangmasters and Labour Abuse Authority (GLAA)

The body will have a particular focus on protecting workers in relation to labour exploitation and modern slavery, national minimum wage, holiday pay and statutory sick pay. Statutory provisions for the creation of the new enforcement body are likely to be included in the Employment Bill (see below).

9. Extending redundancy protection for women and new parents

On 14 May 2021, in its response to a Women and Equalities Committee report, the government confirmed its intention to extend the redundancy protection period currently afforded to mothers on maternity leave in the forthcoming Employment Bill (see below). This was the subject of a previous consultation back in 2019.

Protection will apply to pregnant women from the point they notify their employer of their pregnancy until 6 months after a mother has returned to work and will also apply to those taking adoption and shared parental leave.

10. Employment Bill

In December 2019, a new Employment Bill was announced in the Queen’s Speech, but it has yet to be published and was notably absent from the May 2021 Queen’s Speech. The government has since indicated that the Bill will be forthcoming “when parliamentary time allows”.

It is anticipated that the Employment Bill will be published at some point in 2022. The measures expected to be included in the Bill are wide-ranging, and will include those highlighted above and probably others for which further consultation is required, such as the right to request a more predictable and stable contract after 26 weeks’ service, for those with variable and unpredictable hours (which formed part of the government’s 2018 Good Work Plan).

Timescales for the measures in the Bill to take effect are not yet confirmed, but we anticipate that some may be introduced later in 2022 and into 2023.

About the authors

Liz Stevens is a Professional Support Lawyer at Birketts LLP who specialises in employment law.

Georgia Hunt is a Trainee Solicitor at Birketts LLP who is currently in the Employment Team.

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Find out more

Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (Legislation)

Getting the coronavirus (COVID-19) vaccine for work (ACAS)

Coronavirus (COVID-19) vaccination of people working or deployed in care homes: operational guidance (GOV.UK)

Close Your Gender Pay Gap: A toolkit for business (Managers.org)

Consultation on sexual harassment in the workplace: government response (GOV.UK)

Equality Act 2010 (Legislation)