2021 was another busy and turbulent year for HR and employment law professionals. As the year draws to a close, the Hay & Kilner employment team looks ahead to what we can expect in 2022:
- Temporary change to self-certification: in an effort to free-up GP capacity during the booster program, the rules for SSP self-certification have been temporarily amended to allow employees to self-certify for up to 28 days before a GP fit note is required. This change took effect from 17 December, but applies to absences beginning on or after 10 December 2021, up to and including absences which begin on or before 26 January 2022. The self-certification period will revert to seven days for absences beginning on or after 27 January 2022.
- Vaccinations: whilst vaccinations are already compulsory for staff employed in care homes, from 1 April 2022 it will be unlawful for CQC regulated providers in health and social care to employ unvaccinated staff, except for those individuals who are medically exempt. This requirement will apply to all staff who may have contact with patients in the course of their work. We expect to see a development of case law on this controversial issue.
- Extension to redundancy protections to prevent pregnancy / maternity discrimination: at present, if a pregnant employee is selected for redundancy while on maternity leave, then they have enhanced rights to be offered suitable alternative roles in preference to their colleagues. It is anticipated that this right will be extended to offer protection from when the employee notifies the employer of their pregnancy to six months after an employee returns from maternity leave, but no date for implementation has been confirmed.
- Right to work checks: employers have been permitted to carry out electronic checks due to the ongoing coronavirus pandemic, but employers must revert to physically checking an individual’s right to work in the UK from 6 April 2022.
- Extended leave for neonatal care: in March 2020 the government published a consultation response confirming that parents of babies that are admitted into hospital (where the baby is 28 days old or younger) will be eligible for neonatal leave and pay if the admission lasts for a continuous period of seven days or more. The right to leave will apply from day-one of employment and will be available for up to a maximum of 12 weeks. It is thought that this leave will be in addition to maternity or paternity leave. The right to statutory pay during this leave will be subject to 26 continuous weeks service. An implementation date is yet to be confirmed.
- Sexual harassment: it is expected that a new duty will be introduced requiring employers to prevent sexual harassment in the workplace and introducing new protections from third-party harassment. Nothing has yet been confirmed but it is thought that changes could be introduced in 2022.4
- Flexible working: this has been a hot topic as many employee’s work patterns have changed in light of the pandemic. Following consultation, it has been proposed that the right to request flexible working be amended to a default right to flexibly work unless an employer can justify an alternative. It is expected that 2022 will see a development in this area.
- Restrictive covenants and exclusivity clauses: there have been long running discussions relating to a reform of the law governing the use of post-termination restrictive covenants, as well as extending the “ban” on the use of exclusivity clauses. It is a particularly complex area of law and no definite changes are confirmed, but it is thought that a ban on the use of non-compete clauses may be introduced, unless the employee is paid in full for the time they are unable to work for a competitor.
- Carers’ leave: it is expected that the government will confirm a new right to one week’s unpaid leave per year for employees with long-term care responsibilities.
- Bank Holidays: 2022 will see an additional bank holiday on 3 June to celebrate the Queen’s platinum jubilee. Employers will need to consider their approach to this in respect of whether there is a contractual right to the bank holiday as paid leave and as to how it may impact the holiday entitlement of part-time workers.
Many of these changes remain in the proposal stage and the team shall of course continue to keep you updated of further developments and are on hand to provide any support required. In the meantime, we wish you a Merry Christmas and a Happy New Year!
Should you require support with the implications of this on your business, please do not hesitate to contact the team.