The Government has engaged in a number of consultations considering fundamental changes to employment law. With the ongoing pandemic, many consultations have stalled, but if they are concluded (and there is a reasonable expectation that some might this year), they could reshape some key areas of the employment relationship which we examine further below.
Flexible working rights
Currently, an employee with 26 weeks’ continuous employment may make one flexible working request in any 12-month period. The employer has 3 months to consider and respond to the request, including any appeal process (if an appeal is offered). Outside of technical refusals, for example because the employee does not have the requisite service for making a request, there are only 8 reasons set out in the legislation that an employer can rely on to refuse a flexible working request.
The Government has consulted on the extension of flexible working rights with the goal of making flexible working the “default”. The consultation refers to the sharp adjustment to home working the pandemic required of many employees and while this is not the only way of working flexibly, has shown the benefit of being able to work in this manner to many employees and employers.
The consultation ended on 1 December 2021. Initial responses suggest that many see flexible working requests becoming a day 1 right. Other likely changes, proposed in the consultation were: i) the requirement for the employer to suggest alternatives to an employee’s rejected request (which may be similar to the duty to make reasonable adjustments); and ii) possible updates to the 8 reasons that are currently available to an employer for refusing a flexible working request. The timescale for such legislative changes are uncertain, but the reality for most employers is that they are dealing with such requests and managing a comparatively flexible workforce already.
We expect such changes, should they be made, to impact employers in numerous ways, including increasing the administrative time spent on such requests. A positive impact is likely to be seen for female employees. Given that women are historically more likely to make more flexible working requests, especially those with childcare responsibilities, it will give those people more flexibility in career moves as they won’t have to build up 26 weeks’ service prior to having the right to make such a request. Finally, while employers have been dealing with home working since March 2020, if not before, such systems, if they are going to become the norm, pose challenges relating to employee monitoring, employee suitability during probationary periods, working time and disengagement, all of which employers will have to consider how to tackle.
Sexual harassment
Following the #MeToo movement, the Government launched a consultation in 2019 on sexual harassment in the workplace (the “sexual harassment consultation”).
The Government response to the sexual harassment consultation outlines that they intend to introduce a duty requiring employers to prevent such conduct. The law currently offers limited protection, in that employers may be vicariously liable for acts of sexual harassment committed by their employees but they may be able to defend such claims if they can show they took all reasonable steps to prevent the harassment.
While it might have been thought that the increase in home working reduced the number of incidents of sexual harassment, the charity Rights of Women, have reported that 15% of women who have reported sexual harassment at work reported an increase in online harassment while working from home during Covid-19, showing the need for increased legislation and enforcement in this area.
Employers need to take positive steps now to comply with this likely new duty including bolstering existing policies and providing meaningful and regular training and should not see it as a pure “check box” exercise.
It is unclear whether these changes will apply to all forms of harassment or just sexual harassment, thereby potentially putting sexual harassment above harassment on the basis of other protected characteristics.
The Government also intends to reintroduce protection against harassment from third parties in the workplace (click here for further details).
Whilst no specific implementation date has been set, many expect the Sexual Harassment Bill to be implemented later this year.
Gender pay gap and the menopause
From July to September 2021, the Women and Equalities Committee ran an inquiry into menopause in the workplace. The Employment Appeal Tribunal has also recently held that symptoms of the menopause can amount to a disability.
Gender pay gap reporting is also set to be evaluated. It is clear from pay gap reports that there is a disparity between the progression of men and women of “usual” menopausal age. If an organisation wants to improve their gender pay gap then it is evidently crucial that they consider how they can assist menopausal workers with managing their symptoms, which also reduces the financial and management time burdens on an employer caused by the potential alternative option of running a capability dismissal for an individual absent from work as a result of the menopause.
Additionally, risks of discrimination (age, gender and disability for example) are high depending on the treatment of these employees and, depending on the nature of the legislation that arises from the sexual harassment consultation, considered above, there could be an active duty on employees to ensure that employees are not harassed as a result of a protected characteristic, such as disability.
Of course, if an employee does not let their employer know about their symptoms the employer cannot, consider making reasonable adjustments. The effect of this is that there is not yet an incentive to encourage comfortable and open discussion about employees suffering from the side effects of the menopause in the workplace.
Employers wanting to improve in this space to mitigate the associated risks of ignoring the menopause should implement training and inclusive policies.
Extension of time to bring a claim under the Equality Act 2010
The sexual harassment consultation also considered whether individuals should be given longer to take a harassment, discrimination or victimisation claim to an Employment Tribunal.
The response to the consultation commits to looking closely at whether 6 months (as opposed to the current 3 months minus one day) is the appropriate timescale to balance the competing incentives of access to justice for employees following a traumatising event and also ensuring employers are able to access witnesses and preserve relevant documentation for litigation.
If a key witness leaves employment before a case reaches the Employment Tribunal, it is sensible to capture their knowledge of the matter as well as identifying key documents before they leave and potentially obtaining their commitment to assisting with any future litigation.
Despite popular commentary, we consider that while Tribunals are suffering from extreme backlog and delays, it is unlikely that these changes will be made given that the effect will be to increase the number of claims being made and considering the discretion the Tribunals already have to listen to claims that may otherwise be issued outside the 3 month period.
Post termination restrictions
Restrictive covenants are valid if an employer can satisfy a court that they are no wider (in length and scope) than reasonably necessary to protect a legitimate business interest, bearing in mind various factors.
There is currently a Government consultation in process considering the effect and operation of non-compete clauses. The proposals include an outright ban of non-compete clauses (which we consider to be unlikely), or alternatively requiring payment of a percentage of the employee’s average earnings through the length of the restriction i.e. while they are unable to work in their specific trade/ sector. If such amends were made, the rules would be more in line with many European countries.
The Government has not responded to the consultation yet and so it seems unlikely that changes will be made any time soon.
No jab no job?
Google caused a stir in December 2021 when it was leaked that they are looking to implement a ‘no jab, no job’ policy in their US offices, a country where it is already common for participation in vaccination schemes to be mandatory prior to attendance at regular public institutions, such as nurseries and schools.
In the UK, physically forced vaccination of individuals would likely amount to assault. So instead, the Government and some private companies are using other pressures, for example, reducing sick pay of unvaccinated staff who are forced to isolate in order to encourage employees to get the vaccine. The lawfulness of such an approach has not been tested but we consider the risk of successful discrimination claims, despite the rate of uptake of vaccinations by various protected groups, as seen by the vaccine data, remains low.
The exception, however, is in the healthcare sector. It has been a number of months since staff in care homes have been required to be fully vaccinated and there is now a requirement for those working in frontline health care to be fully vaccinated by 1 April 2022 (albeit we understand that ministers are reviewing this position today). In the recently reported case of Allette v Scarsdale Grange Nursing Home Ltd, the Employment Tribunal held that in the absence of a medical authority or clinical basis for refusing the vaccine, the dismissal of a care home worker who refused it was fair. This is the first insight we have had into the approach Tribunals are likely to take towards refusal of employees to comply with the vaccination mandate in certain sectors.
Employers in other sectors will need to think carefully as to whether vaccination status is necessary to attend the workplace and be mindful of dealing with the potential data protection issues of requesting and recording this data.
Increases to the weekly maximum salary used in Tribunal calculations and National living wage increases
Finally, as is standard and, as a rarity, not a direct effect of Covid-19, from 1 April 2022, the national living wage for those aged 23 and older will increase by 6.6% to £9.50 with the national living wage for other age groups increasing albeit by a smaller amount.
The cap on awards an Employment Tribunal can make for cases involving dismissals and, separately, the cap on a week’s pay are likely to increase from 6 April 2022.
The Vento bands for injury to feelings awards (i.e. awards for non-financial losses to a Claimant) are also likely to be increased in April 2022 and changes in National Insurance Contributions are also being implemented in the April 2022 tax year.
If you have any questions, please feel free to contact the team.