Wed 03 Nov 2021

Employment Law Essentials - Winter 2021

We highlight 3 key risk areas that employers need to be aware of as well as highlighting future employment law changes that employers should have on their radar.

What's happening right now?

1. Claim risk - flexible working applications

As employees return to the office and a Government consultation is ongoing in relation to making  flexible working a day one right, significant numbers of flexible working applications are anticipated.  We are aware of two recent employment tribunal decisions that demonstrate the potentially high cost of failing to deal with these applications properly.  When the flexible working applications were refused both claimants brought indirect sex discrimination claims.  Awards were made of nearly £40,000 in one case and just under £185,000 in the other, both including an award for injury to feelings.  It is essential employers properly consider flexible working applications and ensure their reasons for refusal will stand up to scrutiny.

2. Claim risk - menopause

According to a 2019 survey, three in five menopausal women were negatively affected at work and almost 900,000 women in the UK have left their jobs because of menopausal symptoms. In a recent Employment Tribunal decision it was decided that menopausal symptoms could amount to a disability. It is also possible that menopause discrimination could be covered by claims under sex and age discrimination. Given the age group usually affected by menopause it may well include higher earners, giving scope for significant awards of compensation.  A menopause policy can help female employees discuss any issues with their employers and managers should be trained to deal with concerns sensitively. 

3. Claim risk - long covid

The UK is starting to see significant numbers of "long covid" infections.  This unpredictable condition will be challenging to deal with and employers need to be mindful of the risk of the condition being classified as a disability under the Equality Act 2010.  Whilst it is unlikely to be added to the list of 'deemed disabilities', there is a strong likelihood that the mental and physical symptoms that arise, if long term, will be protected as disabilities under the Act.  Employers should look at each individual case on its own merit and take legal advice, if necessary.

What should you be preparing for?

1.  Duty to prevent sexual harassment

The UK Government recently announced that a new duty on employers to prevent sexual harassment in the workplace is to be introduced "as soon as parliamentary time allows".  The Equality and Human Rights Commission (EHRC) are to develop a code of practice on harassment at work and the UK Government is to discuss with the EHRC the possibility of extending the enforcement action they are currently able to take.  A commitment has also been given to introduce a duty to prevent third-party harassment. Extension of the time limits from 3 to 6 months for lodging Equality Act claims before the Employment Tribunal is also being considered.

2.  Progress on the Employment Bill

Although no definite date has been given for the Employment Bill being brought into effect, a number of announcements indicate progress is being made.  We now know:-

  • a consultation looking at making changes to the statutory right to request flexible working will close on 1 December 2021. If you would like to have a say, the consultation can be found here;
  • redundancy protection for pregnant women is to be extended from the point of notification of pregnancy to 6 months after the end of maternity leave;
  • leave and pay for up to 12 weeks for the parents of babies in neonatal care is to be introduced with it being anticipated that this will be implemented in 2023;
  • 1 week's unpaid leave each year for carers is to be introduced and will be a day one right; and
  • legislation preventing employers making deductions from tips received by staff will be supported by a statutory Code of Practice.

3.  Changes to right to work checks - April 2022

The concession made by the Home Office in 2020 that relaxed right to work checks in light of the coronavirus pandemic and the large number of employees working remotely has been further extended to 5 April 2022.  From 6 April 2022 onwards, employers will be expected to resume normal right to work checks which, in most cases, will require in-person checks of the original passport or biometric visa card. More information on how to deal with this is available here.

4.  NIC and health and social care levy

From April 2022, there will be a temporary 1.25% increase in Class 1 primary National Insurance contributions (NIC) rates for employees and Class 1 secondary NIC rates for employers. From April 2023 the increase will be treated separately as a Health and Social Care levy and will also apply to those working above the state pension age. The money raised will be ring-fenced for health and social care.

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