The government’s Employment Bill – What employers need to know in 2022

Significant changes are expected to be contained in the Employment Bill, due to be published this year. We identify six hot topics for employers in 2022.

1. Flexible working requests

One of the biggest employment law developments this year is the change to flexible working requests.

Many people have been used to working from home during and after the pandemic and it is expected that, while some will want to return to work, others will prefer to continue homeworking.

Previously an employee had the right to make a request for flexible working after 26 weeks continuous service – the proposed change means that request could be made after day one. It means that a previously agreed pattern of work could be changed on day two and employers are likely to see an increase in requests this year.

Although the request should be fairly considered in accordance with procedure, it is important to note that no one has the right to flexible working and that an employer can still turn the request down on specific grounds.

Employers should be aware that there is a risk of a claim, in particular indirect sex discrimination, if the request is turned down.

2. A new right to carer’s leave

A new right to carer’s leave will be introduced in 2022 which enables the employee to take up to one week (five working days) of unpaid leave per year. This must be taken as a block or else 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 relating to old age. This could be a spouse, civil partner, child, parent, or someone living in the same household.

Employees will need to give twice as much notice as the amount of time they intend to take off as leave, plus one day. Again, only employees will be eligible and there is no qualifying period of employment needed – employees have a right from day one.

Self-certification of their entitlement will be required by employees, but they won’t need to provide supporting evidence. If someone is dismissed for a reason linked to carer’s leave, their dismissal will be automatically deemed unfair.

3. Maternity redundancy protection

There will be an extension of redundancy protection currently in place for those on maternity leave.

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

The extension covering mothers up to six months after returning to work is being made due to a concern that many are made redundant shortly afterwards.

There is no absolute bar on making someone on maternity leave redundant but there is a duty to offer suitable alternative work that may exist.

4. Neonatal care and pay

Under the new Employment Bill, all employees with babies requiring neo-natal care will be given additional leave. Depending on how long neo-natal care is required, parents will be able to take up to 12 weeks.

This will be unpaid for those at the start of their employment but paid for those with over 26 weeks continuous service. It is likely that the leave will need to be taken in a continuous block of one or more weeks.

Employees who earn above the minimum pay threshold are expected to be entitled to receive pay for the neonatal leave period at the current statutory rate.

5. Workplace Sexual Harassment

The Government is proposing to introduce a new duty on employers to prevent third party harassment, including being harassed by customers. This is a particular issue for staff working in bars, pubs or in hospitality settings in general. This is likely to include a defence where an employer has taken ‘all reasonable steps’ to prevent harassment.

There used to be a specific form of discrimination claim, but this was repealed – it is thought this may be reintroduced in some form. The government is also looking at extending the time limits for claims under the Equality Act 2010 from the current three-month period to six months.

6. Tips and Gratuities – Hospitality Sector

In September last year, the government published its response to a consultation from 2016 on tipping, gratuities, cover, and service charges.

The Employment Bill is expected to contain provisions that workers in the hospitality sector retain all tips paid to them on a fair and transparent basis. Employers will be required to have a written policy on tipping and keep a record of how tips are handled.

There will also be a new statutory Code of Practice on Tipping for employers to follow, which will replace the existing voluntary code.

Our Employment team provide support to businesses helping them keep ahead of recent changes in Employment Law. If you need some friendly advice, call Steph Marsh on 01579 324 017 or send her an email.