After a couple of quiet years in the field of Employment Law, 2022 has seen a number of changes to regulations – as summarised below:
9 May 2022 – Ban on Exclusivity Clauses
The government has announced that it will extend the ban on exclusivity clauses currently in place for those on zero hours contracts to workers on or below the Lower Earnings Limit (the threshold that entitles employees to qualify for certain state benefits such as the basic state pension). The lower earnings limit for the current tax year is set at £123 a week and an estimated 1.5 million workers have weekly earnings at or below this level. Exclusivity clauses in employment contracts prevent workers from working for other employers. Rules to extend this ban, which is in response to a consultation launched in December 2020, will be introduced later in 2022.
1 Jul 2022 – Fit Note Certification Rule Change
From this date nurses, occupational therapists, pharmacists and physiotherapists working in GP practices or in hospitals will be able to issue and sign fit notes. The change follows on from the digitalisation of fit notes on 6 April 2022 (see above) and is intended to free up GP time for consultations and streamline the process for patients, employers and the NHS.
Regulations introducing the change were produced on 10 June 2022 and apply to England, Scotland and Wales.
12 Jul 2022 – Ban on Exclusivity Clauses Regulations
Draft regulations to include those earning below the lower earnings limit (set at £123 a week in the current tax year) in the ban on exclusivity clauses in zero hours contracts have now been put before Parliament. They will come into force 28 days after they have approved.
15 Jul 2022 – Neonatal Care Bill receives Government Backing
The Neonatal Care (Leave and Pay) Bill received government backing on this date. It will allow parents whose babies need hospital neonatal care to take 12 weeks’ paid leave in addition to their statutory maternity or paternity leave. The right will:
- be available from day one of employment
- apply to parents whose babies are admitted to hospital up to the age of 28 days
- apply to babies who need to stay in hospital for 7 days continuously or more.
The reform was proposed in May 2020 following a consultation by Teresa May’s government in 2019.
15 Jul 2022 – Tipping Bill receives Government Backing
A private members bill that will make it unlawful for employers to withhold tips from staff has received government backing. A new statutory Code of Practice on how tips should be distributed will also be developed, and workers will gain a new right to request information on an employer’s tipping record which will help them to bring a tribunal claim under the new rules.
18 Jul 2022 – Policy Paper on Menopause
On this date, the government outlined its policy on menopause and employment in response to recommendations from a roundtable set up in July last year. The policy includes:
- not making changes to the Equality Act 2010 (on the basis protection against discrimination for menopause is already covered by the sex, age and disability provisions)
- setting up a menopause taskforce to ensure the issue is prioritised in public policy on inclusion and diversity at work (the taskforce had its first meeting in February this year)
- appointing government ‘menopause employment champions’ and encouraging larger organisations to do the same.
The House of Commons Women and Equalities Committee produced a report on ‘Menopause and the workplace’ on 28 July 2022, recommending that menopause should become a protected characteristic, and dual discrimination claims made possible under the Equality Act, to make menopause claims easier.
18 Jul 2022 – Data Protection Bill
On this date, the government introduced a bill intended to make the UK’s current GDPR regime less of a burden on business while retaining a ‘global gold standard’ for data protection. Among other measures, the data protection bill will:
- allow organisations to appoint a ‘senior responsible individual’ to monitor data processing rather than a data protection officer (DPO)
- specify that ‘identifiable personal data’ is data identifiable by those processing or receiving it, rather than anyone
- create a list of ‘recognised’ legitimate interests for processing data
- expand the circumstances when data subject access requests (SARs) can be refused
- restrict automated decision-making only when ‘special’ (sensitive) personal data is involved.
The bill was announced in the Queen’s Speech.
21 Jul 2022 – Agency Staff replacing Strikers Becomes Lawful
On this date, the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 came into force, allowing employers for the first time to use agency workers to carry out the work of striking employees.
26 Jul 2022 – New Guidance on Employment Status
The government has decided not to legislate on employment status but to issue non-statutory guidance instead for employers and individuals making it clearer which rights attach to which category of employment (employee, worker and self-employed). The announcement comes alongside the government’s response to a consultation begun in 2018 following the Taylor report (see Employment law update, proposed law changes). Although most respondents to the consultation were in favour of both reforming the definition of employment status and aligning tax and employment status, there was no consensus on how this should be achieved. Given the current economic situation, the government has concluded that now is not the right time to legislate.
26 July 2022 – Strike Limiting Measures
The government has now legislated to allow the use of agency workers to cover for those on strike. In an article on this date, Secretary of State for Transport Grant Shapps outlined further proposals for restricting industrial action including:
- maintaining minimum staffing levels during strikes in ‘critical national infrastructure’ industries like the railways
- limiting pickets at points of critical national infrastructure to six
- banning strikes by different unions in the same workplace within a set period
- raising the minimum notice for industrial action from two weeks to four weeks
- raising the minimum voting in favour of strike action from 40% to 50%
- introducing compulsory ‘cooling-off periods’ of up to 60 days after strikes.
22 Aug 2022 – Scale-up Visa Launched
On this date, a new immigration route for highly skilled workers (such as scientists, engineers, software developers and architects) into the UK opened for scale-up companies. These are businesses that:
- have grown by 20% or more in terms of staffing or annual turnover for at least three years
- had 10 or more employees at the start of the three years.
Employers will need to sponsor the visa for only six months, but the sponsored worker will have two years’ leave to remain in the UK during which they can work for any employer without further sponsorship.
Workers using this route will need to be:
- 18 years or over
- a graduate from an institution approved by the Home Office
- have a genuine offer of employment for at least six months in a graduate-level skilled job
- be guaranteed a basic salary of at least £33,000 (or the going rate in the relevant sector).
1 Oct 2022 – Right to Work Checks Change
During the COVID-19 pandemic, the government introduced digital ways for employers to check employee’s right to work in the UK because of the difficulties associated with manually checking documents. These arrangements end on 30 September. New digital right to work checks, using ‘identification document validation technology’ (IDVT), became available for employees with valid British or Irish passports from 6 April 2022. Employers can use a ‘identity service provider’ (IDSP) to carry out this check, although they remain responsible for checking the identity of the employee and retaining the record for the duration of employment plus two years.
From 1 October, employers will need to either:
- Carry out a manual check by physically meeting with the employee to check and copy their original documentation.
- Appoint an ‘identification service provider’ (IDSP) to check the passport of the employee on behalf of the employer.
Government guidance has been updated and has a list of approved IDSPs. The Employer Checking Service continues for right to work checks on non-UK/Irish citizens.
Future changes: Employment Law Deregulation
The Government has introduced the Retained EU Law (Revocation and Reform) Bill
We all knew that at some stage the Government would review UK regulations that are derived from our former membership of the EU. This Bill repeals the whole of the UK’s retained EU law from the end of December 2023 – except for the legislation that the Government chooses to retain. The Bill does not repeal laws that have found their way into primary legislation so discrimination law, maternity leave and measures related to collective redundancy consultation will stay in place despite their links with EU law.
However, regulations on TUPE, agency workers, part-time workers, fixed-term employees and working time are all due for repeal.
The Bill also seeks to remove any special status that EU law may have in the interpretation of UK law. For the laws that survive the cull in 2023, that could be very significant.
In particular, the current position on the calculation of holiday pay is heavily influenced by European Court of Justice decisions that conflict with the wording of UK working time legislation. If the Bill remains as it is, issues such as the relationship between annual leave and sickness absence and the inclusion of overtime pay and allowances in the calculation of holiday pay will all have to be revisited.
It is not clear how developed the Government’s thinking on these issues really is and there is as yet no indication of timetable. However, it is starting to look as though, after a period of stability, employment law is about to see some dramatic changes.