As 2021 draws to a close, HR professionals will be planning for the year ahead. They will need to keep a close eye on some of these employment law developments, outlined by Beverley Sunderland, if they want to avoid being summoned to a tribunal.
Covid in the courts
There is no doubt that more cases will start to work their way through the overburdened tribunal system which directly relate to the pandemic. There are questions around whether redundancies were fair given the availability of the furlough scheme, and whether employers were right to dismiss for failure to obey Covid-19 restrictions. There are also likely to be significant cases in relation to employees dismissed for refusing to return to the office when asked to do so.
As compulsory vaccinations come into effect in some settings such as care homes and, from next year, the NHS and other medical settings, will employees challenge this on the basis that their employer has not done enough to find them another role?
There will also be consideration of dismissals of employees in settings where vaccination is not compulsory, but where for example the constant absence of unvaccinated employees due to self-isolation, has meant that trying to organise a business and staffing has become impossible – especially when they work in areas where employees cannot work from home, such as warehouses and retail. Also, those unvaccinated employees who are unable to travel as part of their jobs.
Pending legislative changes
There are also a number of anticipated changes – some of which have been a long time coming! It’s possible that many of these will appear in the promised Employment Bill.
Restrictive covenants and exclusivity clauses: the government is canvassing opinion on options to reform the law governing the use of post-termination restrictive covenants, as well as extending the “ban” on the use of exclusivity clauses. This is the second time that the government has attempted changes to this complex area of the law – the UK is out of kilter with other European countries such as Germany where it is possible to impose a non-compete clause, but only if the employee is paid in full for the time they are unable to work.
Extension to redundancy protections to prevent pregnancy/maternity discrimination: there is a popular myth that you cannot make those on maternity leave redundant. This is not correct. While you must not make them redundant because they are on maternity leave, you must treat all employees fairly and equally, which means including those on maternity leave in a pool with colleagues. However, if they are selected for redundancy while on maternity leave then a woman has enhanced rights to be placed into a vacant role for which they have the skills without competitive interview. The government intends to extend that protection for six months after the woman returns from maternity leave, but it has been talking about it for some time without actually implementing the changes.
Extended leave for neonatal care: following consultation in 2019, the government published a response in March 2020 confirming that parents of babies that are admitted into hospital as a neonate (28 days old or fewer) will be eligible for neonatal leave and pay if the admission lasts for a continuous period of seven days or more. They will be entitled to this from day one of their employment and up to a maximum of 12 weeks. There have been no further details published, including the level of the neonatal pay.
Planning for 2022
A new right for all workers to request a more ‘predictable’ contract: no details have yet been published, but this is to address the perceived imbalance of zero-hours contracts.
Carers’ leave: a new right to one week’s unpaid leave per year will be introduced for carers. There is as yet no timetable for implementation but hopefully it’ll be next year.
Flexible working: a consultation on amending the right to request flexible working has been published with the proposal that flexible working is the default setting unless an employer can justify anything different. Next year will hopefully see the outcome of that consultation and some proposals.
Sexual harassment: there will be a new duty on employers to prevent sexual harassment and new protections from third-party harassment. It has yet to be confirmed when this new duty is likely to take effect; draft legislation to implement it has not yet been published but is anticipated in 2022.
New enforcement body: a new workers’ watchdog – a single enforcement body for employment rights – is to be set up. The government has confirmed that it will press ahead with setting up such a body, the idea for which was first mooted in the Good Work Plan in December 2018. The government hasn’t committed to a timescale, saying simply that it’ll be set up via primary legislation ‘when Parliamentary time allows’.
Right to work checks: the date from which employers must revert to physical checking of someone’s right to work in the UK has been pushed back to 6 April 2022.
Expected cases of interest
Chell v Tarmac Cement and Lime Ltd: this is on appeal from the High Court – the matters for the Court of Appeal to decide is whether the employer was vicariously liable for the consequences of their employee’s practical joke. The Court of Appeal hearing took place on 24-25 November 2021 and so the decision is expected sometime next year.
Chief constable of the Police Service of Northern Ireland v Agnew: a Northern Ireland employment tribunal concluded that a gap of more than three months did not necessarily mean that a claimant could not bring backdated holiday pay claims. The Northern Ireland Court of Appeal upheld the decision. There is no listing for a Supreme Court hearing. It’s reported that the parties are trying to settle which, if true, would leave a different position in Northern Ireland to that in the rest of the UK.
Harpur Trust v Brazel: the EAT and Court of Appeal held it was wrong to apply a cap of 12.07% of annualised hours, the employer must use the average over the preceding 12 weeks under WTR 1998. The Supreme Court hearing was on 9 November 2021 and the decision is awaited.
HR should keep abreast of any changes to legislation or case law in 2022 in order to avoid potentially costly litigation.