Employment law update December 2021

HR Update for 2022 / Employment law update

Flexible Working Requests

The government launched a consultation on 23rd September proposing,  to remove the service requirement for making flexible working requests. Currently, employees must have worked for their employer for at least 26 weeks. 

In addition to making flexible working requests a day 1 right, the consultation also proposes: 

• Requiring employers to suggest alternatives if they reject the employee’s request 
• Allowing the change to be temporary rather than permanent 
• Review whether the eight business reasons for refusing a request remain valid. 

The consultation closed on 1 December 2021. 

On the same date, the government confirmed its commitment to introduce a new day 1 right to a week’s unpaid leave for working carers. The leave must be: 

• Taken in full or half days 
• Used for a dependant with long-term care needs 
• Notified to the employer in advance. 

The new right will be introduced ‘when parliamentary time allows. 

Menopause

Conversations around women’s health including the menopause and perimenopause continue to be an important consideration for employers and have been in the press a lot recently. The government is looking into the current legal protections and workplace practices for menopausal women. 

The Guardian cited a 2019 CIPD survey which found nearly a third of women experiencing menopausal and perimenopausal symptoms of all kinds, had taken sick leave as a result and most also reported feeling unable to tell their manager the real reason.   

Fit Notes

Between 10th December and 26th January, you will not be able to ask an employee to go to their GP for proof of sickness until the absence has lasted 28 days.  This is a temporary change only in light of the exceptional pressure placed on GP’s in managing the government booster role out. 

Maternity Leave and Redundancy

Currently, those on maternity leave who are at risk of redundancy must be offered suitable alternative roles in advance of others. This protection ends once the employee returns to work. 

Future changes will mean that this protection starts from the date the employee informs her employers that she is pregnant, whether verbally or in writing. This protection will last for a further six-month period once the employee returns to work. The extended protection will also be available to those on adoption and shared parental leave. 

It is currently not confirmed when this will come into force. 

Increases to statutory pay rates

The Department of Work and Pension has published its proposed increases to various statutory weekly rates of pay.  These are expected to come into effect from April 2022.  Statutory sick pay will rise to £99.35 per week and statutory maternity/paternity/adoption and shared parental pay will rise to £156.66 per week. 

To be entitled to these statutory payments, the employee’s average earnings must be equal to or more than the lower earnings limit. This amount for April 2021 was £120 per week, the amount that will apply from April 2022 has not been announced yet. 

National Minimum Wage

The government has announced the annual increases in national minimum wage rates to apply from 6 April 2022. 

From 6 April 2022, the new hourly rates recommended by the Low Pay Commission and accepted by the government will be: 

• Age 23 or over (national living wage rate): £9.50 (from £8.91) 
• Age 21 to 22: £9.18 (from £8.36) 
• Age 18 to 20: £6.83 (from £6.56) 
• Age 16 to 17: £4.81 (from £4.62) 
• Apprentice rate: £4.81 (from £4.30) 

New legislation to ensure that tips and gratuities go to the staff

In September 2021 the Government published their response to the consultation on tipping, gratuities, cover and service charges. This confirmed that legislation will be introduced requiring employers in all sectors not to make any deductions, other than those required by tax law, from tips received by staff.  Employers will also have to distribute tips in a fair and transparent way, have a written policy on tips and record how tips are dealt with. Employees will be able to request information from their employer about their tipping record and this must be responded to within 4 weeks.  A statutory Code of Practice, that employers must have regard to, is to be produced.  Should any of these rights be breached workers will be able to make claims to an employment tribunal.  

No timescale for the introduction of the new rules in relation to tipping was announced. 

Increase to length of time required for continuity of employment to be broken

The time required to break a period of continuous service extends from one week to four weeks. Employees can have a gap of up to four weeks in their service with an employer without it affecting their entitlement to statutory employment rights. The Government’s Good work plan states that the extension of time will make it easier for employees who work intermittently over a period of time for the same employer to access their rights – To be confirmed 

New Right for Workers to request a more predictable contract

All workers will have the right to request a more predictable and stable contractual working pattern after 26 weeks’ continuous service. The new right was announced in the Government’s Good work plan on 17 December 2018. It is intended to benefit workers who have irregular hours, for example under a zero-hours contract, but who would like more certainty on the number of hours they work and/or the days on which they work.