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Employment Newsletter Issue 18

1st February 2022

Employment Newsletter Issue 18

Focus On: What to Expect from 2022

Whilst Covid-19 continues to dominate the news, and we anticipate it will continue to have a considerable impact on employment law in 2022, there are also some other important changes to employment law that you should be aware of this year.

In this edition, we will be covering hot topics in 2022, including: 

  1. Covid-19
  2. Flexible working
  3. The anticipated Employment Bill
  4. The duty to prevent sexual harassment  

Hot Topic #1 – Covid-19

The end of plan B and the return to the workplace

As the country moves from Plan B to Plan A, many employees are beginning to return to the workplace after a short stint of working from home. The government has encouraged employees to talk to their employers in order to agree arrangements. Employers should consult with their staff about the return to the workplace and should carefully consider the risks of implementing a blanket mandate obliging all workers to return to the workplace full-time. 

Some employees may resist returning to the workplace because they are concerned about catching Covid-19 or simply because they prefer working from home. An employer should listen to any concerns that staff have about returning to work, bearing in mind their duty to protect the health and safety of all employees. If a solution cannot be reached, a refusal to return to the workplace without a valid reason could result in disciplinary action. However, when considering options, employers should be aware of the risk of indirect discrimination claims, as obliging all employees to return to the workplace could place those with a protected characteristic at a disadvantage.

Mandating vaccinations

Mandating vaccinations continues to be a hot topic in 2022. The government had passed Regulations meaning that on 1 April 2022, vaccinations would be a requirement for all health and social workers in a face to face role. This has now been put into question by the news of a potential U-turn by the government in recent days and it is currently looking unlikely that they will follow through with the policy. However, in other sectors, many employers have been encouraging employees to get vaccinated and some have opted to mandate vaccinations. However, there are risks in doing so in the absence of government guidance or regulations requiring this. For instance, employees could bring claims for discrimination if they cannot have the vaccine due to a medical condition or claims for unfair dismissal if they are dismissed for refusing vaccination.

The first judgment was released last week in a case concerning a care home worker who was dismissed for refusing the vaccination. The employment tribunal held that the dismissal was fair. Interestingly, although the tribunal accepted that the employee’s fear about the vaccine was genuine, the mandate to be vaccinated was a reasonable management instruction and there was no medical basis for refusing. Dismissal was therefore within the range of reasonable responses for an employer.

Cutting sick pay for the unvaccinated

Businesses such as IKEA, Ocado and Morrisons have announced in the last few weeks that they are cutting company sick pay for unvaccinated members of staff who have to self-isolate because they have been a close contact of somebody positive for Covid-19. By contrast, fully vaccinated employees do not have to self-isolate if they come into contact with a positive case of Covid-19. Employers are beginning to make this move in order to cut costs, reduce staff shortages, and encourage vaccination uptake.

Such a policy should be caveated to exclude employees who cannot have the vaccine due to medical reasons to avoid the risk of any discrimination claims. Similarly, employers may also wish to consider excluding employees who have not been vaccinated for religious reasons. However, whilst such a policy may have a disproportionate impact on those from certain ethnic or religious groups (which could give rise to a claim for indirect discrimination), employers may well be able to justify the policy on the basis of their legitimate business needs to mitigate against high levels of staff absences and costs.

When considering such a policy, employers should also be mindful of their data protection obligations, as they are likely to end up directly or indirectly collecting vaccination data even if they don’t ask explicitly for employees to disclose their vaccination status. Employees’ health information falls in the category of special category person data for the purpose of GDPR and data protection laws in the UK. As such, employers would have to identify a lawful basis under the law for processing this data in order to comply.

The ICO guidance for organisations  states that the sector in which the employer operates, the nature of the work carried out by its workers, and the health and safety risks in the particular workplace, will be relevant for employers in deciding whether they have legitimate interests to record the vaccination status of their staff. Furthermore, the guidance states that the collection of this information must not result in any unfair or unjustified treatment of employees and if the collection of the information is likely to have a negative consequence for an employee, the company must be able to justify it. In order to do so, it is recommended that employers complete a data protection impact assessment.

Hot Topic #2 – Flexible Working

As discussed in previous editions, flexible working requests are likely to be a prevalent issue for employers this year. This is largely as a result of the pandemic and a new focus on making flexible working more accessible and commonplace. Indeed, many employers have already moved to a hybrid working model, and the government consulted between September 2021 and December 2021 on making flexible working the ‘default’. This consultation set out five proposals, including making flexible working a day one right to request. As the consultation closed on 1 December 2021, we are unlikely to see response from the government until the second half of 2022. Please refer to edition 15 for more information on this.

Hot Topic #3 - Employment Bill

We are anticipating that a new Employment Bill may be published this year, following its announcement in the December 2019 Queen’s Speech. It is likely to include the following:

  1. A requirement that all tips and service charges go to workers in full.
  2. The introduction of a single labour market enforcement agency to ensure that vulnerable workers are informed of their rights, and to support businesses compliance (as proposed as part of the Good Work Plan).
  3. The right to request a more predictable and stable contract after 26 weeks’ service (as part of the Good Work Plan).
  4. An extension of the period of redundancy protection for pregnant employees. Currently, an employer must offer an employee on maternity leave a suitable alternative vacancy, if one if available, before making them redundant. This proposal will mean that pregnant employees will receive protection from the moment they notify their employer of their pregnancy until six months after the end of their maternity leave.
  5. Paid leave for neonatal care (see below for further details).
  6. A week’s leave for unpaid carers (see below for further details).

Neonatal leave and pay

In March 2020, the government proposed to introduce statutory neonatal paid leave for up to a maximum of 12 weeks for parents of babies requiring neonatal care. The leave will be added on to the end of the parent’s period of maternity or paternity leave and will be available to all employees.

It has not been confirmed when this new right will be implemented, but it is likely to be included in the Employment Bill.  

A week’s leave for unpaid carers

On 23 September 2021, the government published a response to its consultation on carer’s leave. In the response, the government committed to introducing a right for unpaid carers to take up to a week of unpaid leave each year and it is expected that this will be implemented as part of the Employment Bill.

Hot Topic #4 – Duty to prevent sexual harassment

The government confirmed in July 2021 that it will introduce a new duty for employers to prevent sexual and third-party harassment. This could have a considerable impact on how employers are expected to manage the risks associated with harassment.

The duty is likely to include a defence where an employer has taken all reasonable steps to prevent the harassment. It may be that this is introduced as part of the Employment Bill.

For more information please contact Tim Jones, Head of Employment on tim.jones@higgsllp.co.uk or telephone 01384 327172.

 

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