Re-focusing our Gaze: The HR Agenda for 2022

In this article, we look to refocus our gaze on the horizon and answer the question: what legal changes and challenges are on the HR agenda for 2022?

Covid-driven changes and opportunities

Mandatory vaccination and/or testing

As employees have returned to the workplace on a more regular basis, employers are asking key questions about vaccination and testing.

As of 11 November 2021, all care home employees and those entering a care home (over the age of 18) are required to be fully vaccinated against COVID-19, unless they fall within one of the exemptions.

On 9 November 2021, the government published its Response to the consultation on “making vaccination a condition of deployment in health and wider social care sector”, confirming that compulsory vaccination will be extended to frontline NHS staff and the wider social care sector.

An increasing number of states and countries are introducing mandatory vaccines for other professions (including teachers and all private sector employees), and the UK Prime Minister has called for a national conversation on mandatory vaccination. However, at the time of writing, the government is split over the issue and there are no concrete plans or proposals to implement such a scheme.

Accordingly, for UK employers in sectors not legally required to impose mandatory vaccination, mandating vaccines and testing is generally allowable only if it is proportionate and necessary for employers to comply with their legal obligations to ensure the health and safety of their workplace. This is likely to be difficult for many employers to demonstrate and presents several legal risks.

International employee mobility

As borders open, so do the explorative minds of employees worldwide who have been restricted from travelling for the best part of the past year. As a result, HR departments are seeing a spike in the number of employees requesting to work abroad, either for an extended period or on a shorter-term basis whilst ‘holidaying’ abroad for two to four weeks.

Traditionally, many companies have maintained an internal policy to reject such requests on the basis of tax risks. Post-pandemic, many are seeking to re-evaluate this stance and put in place more flexible international working policies that allow for temporary employee mobility. The UK’s exit from the EU adds complexity to managing this type of arrangement, which entails consideration of (amongst other things) employment, tax and immigration laws. By way of example, the free trade agreement between the UK and the EU (the “TCA”) provides five potential routes for EU nationals to work or do business in the UK. The provisions relating to each are extremely complex and largely untested in a practical environment.

Hybrid and flexible working arrangements

The recent shift towards hybrid and flexible working arrangements lies at the intersection of COVID-related developments enabled by technology and employers’ increased focus on employee wellbeing. Many employers are assessing their future of work strategy and looking to capitalise on the benefits of remote working in the longer term, but the approach varies significantly by sector and country. For more information on the risks and benefits of remote working see our multi-jurisdictional guidance on the topic here.

In 2019, before COVID-19 forced this seismic shift, the UK government made a manifesto commitment to create a new ‘day one’ right for employees to make a flexible working request in an effort to make flexible working the ‘default’. The consultation on this change closed on 1 December 2021.

Whilst implementation has been somewhat superseded by pandemic-related home working, it is expected that legislation will be introduced in 2022 to create the ‘day one’ right by removing the requirement to have at least 26 weeks’ service to make such a request and requiring employers to, amongst other things, suggest alternatives (where possible) if they reject an employee’s request.

Technology-driven changes and opportunities

Widespread homeworking during COVID-19 has led to a rise in employee monitoring, and employers wanting to make progress in their ESG initiatives have raised queries on the collection and use of employee data for purposes such as monitoring and reporting on worker diversity and inclusion. A big factor driving efficiency, innovation and productivity in this space is the use of Artificial Intelligence and Machine Learning in the employment lifecycle.

When dealing with data, employers should keep in mind that the ICO’s new data sharing code of practice came into force on 5 October 2021 and provides practical guidance for organisations on how to share personal data in a way that complies with the UK GDPR and Data Protection Act 2018. Additionally, on 28 October 2021 the ICO closed stakeholder consultation on new guidance on data protection and employment practices. The key aim of the consultation is to ensure “new guidance addresses the changes in data protection law, reflects the changes in the way employers use technology and interact with staff and meets the needs of the people who use [the ICO’s] guidance products.”

In parallel, the Equality and Human Rights Commission (“EHRC”) will publish its strategic plan in 2022. The plan is expected to provide guidance on how the Equality Act 2010 applies to the use of new technologies used in automated decision-making and ensure the use of AI in recruitment does not embed biased decision-making in practice. Our article tackling some of the opportunities and risks is available here.

It is notable also that the EHRC plan will outline proposed areas of focus for the workplace, including flexible working (see above) and unfair ethnicity and disability pay gaps (see below).

ESG-driven changes and opportunities

It is generally accepted that companies that actively consider how ESG principles affect their workforce and anticipate and take steps to control associated risks, benefit from improved profitability and reputation amongst employees, consumers and investors alike.

Successful engagement with social and governance issues and implementation of ESG strategy involves vital contributions by HR specialists and in-house employment counsel. The “S” of ESG encompasses a broad range of people issues, including the approach to a post-pandemic shift towards hybrid working models (discussed above), supporting employee wellbeing and safety both mentally and physically, undertaking due diligence and implementation of key initiatives relating to human rights (for example, modern slavery and child labour issues), diversity, equity and inclusion, and beyond.

Evidence increasingly suggests that diversity in an organisation can lead to increased profitability, greater innovation and stronger governance. Initiatives aimed at social mobility, equity, inclusion and diversity are now consistently high on the HR agenda. Key legal pulse points to keep your eye on in this space throughout 2022 are as follows:

• Gender pay gap reporting is expected to revert to the usual timescales in 2022.
• The government response to its ethnicity pay gap reporting consultation is expected in 2022.
• There is a renewed focus on disabilities in the workplace. ACAS recently launched a new Disability at Work Hub and the Law Society, with Cardiff University, published best practice guidance on disability inclusion and reasonable adjustments. Additionally, the government is consulting on the disability employment gap. The “Disability employment gap: Government Response to the Committee’s Second Report of Session 2021– 22” was published on 22 November 2021. On mandatory disability pay gap reporting, the inquiry states, “In the National Disability Strategy, the Cabinet Office committed to leading a consultation on workforce reporting on disability for large employers, exploring both voluntary and mandated workplace transparency. The Disability Unit will lead in organising the consultation, working with other relevant departments, including DWP. We believe this is the right next step, to ensure the issues and options are well understood.”
• The #MeToo movement catalysed a cultural shift in the way companies deal with sexual harassment. However, a recent report published by Fawcett Society states that more than 40% of women experience sexual harassment during their career and 68% of LGBT employees have experienced harassment at work. The recommendations in the report are expected to form the basis of a new toolkit for employers to tackle workplace sexual harassment, which is due to be published January 2022. Additionally, on 21 July 2021 the UK government published its response to the consultation on workplace harassment, which confirmed it will introduce a duty on employers to prevent sexual harassment, new protections from third-party harassment, and will potentially extend the time limits for bringing a claim under the Equality Act 2010 from three to six months. It is expected that these changes will be made in 2022 and will be accompanied by a new statutory code of practice and government guidance for employers to support the new duty to prevent sexual harassment.

Even if diversity goals are not yet brought into legislation, they exist in the eyes of employees, the public and investors. Taking action and proactively providing information on the “social” aspects of ESG can help companies maintain a publicly-aligned focus on diversity issues and enhance standing with investors. Practical tips for employers (and potential areas of focus for the year ahead) include:

• Reviewing and implementing policies and procedures with a greater focus on combatting discrimination and inequality, and ESG more generally (for example, grievance procedures, whistleblowing procedures, supplier codes of conduct, etc.).
• Ensure adequate systems are in place to protect the health and safety of the workforce, including in respect of mental health.
• Identify potential issues and seek to resolve them swiftly; for example, bias in recruitment practices or lack of board diversity.

Delayed introduction of new legislation

The rate of legislative change in the UK has been slower than anticipated over the past two years. However, in 2022 in-house employment lawyers will need to keep their fingers on the pulse of legislative change.

In 2019, the UK government promised that it would bring forward a new employment bill to improve people's rights at work. However, no legislation has been forthcoming, and the Queen’s Speech (11 May 2021) omitted to include an Employment Bill in the legislative agenda. In response to the ensuing backlash, the Department for Business, Energy and Industrial Strategy expressly blamed the COVID-19 pandemic for the delay and stated that the Employment Bill would be introduced “when the time is right”.

The right time may well be 2022, but what would such a bill include?

If one is forthcoming, an Employment Bill is likely to introduce a wide range of measures including, in addition to those already mentioned above:

• Amalgamating the HMRC National Minimum Wage Enforcement, the Employment Agency Standards Inspectorate (“EASI”) and the Gangmasters and Labour Abuse Authority (“GLAA”) into a new single enforcement body with extensive powers to protect employment rights and improve employer’s compliance, particularly in respect of labour exploitation and modern labour, National Minimum Wage, holiday pay and statutory sick pay.
• Neonatal leave and pay for parents of babies requiring neonatal care, providing an additional week of leave for every week their baby is in neonatal care, up to 12 weeks maximum.
• A new ‘day one’ right to one week’s unpaid leave per year for employees with long-term caring responsibilities.
• An extended redundancy protection period to that currently afforded to mothers on maternity leave for six months following return to work and an extension of such protection further to adoption and shared parental leave.
• Provisions to ensure that tips left by customers in the hospitality sector are retained by staff in full by requiring employers to have a written policy on tips, record how tips are dealt with and comply with a new statutory Code of Practice on Tipping (to replace the existing voluntary code).
• Lengthening the time required to break a period of continuous service from one week to four weeks.
• Provisions making it compulsory for organisations to publish their modern slavery statements on a new government-run registry.

Other potential changes on which the government has consulted include:

• Restricting the enforceability of post-termination non-compete clauses such that they are unenforceable or only enforceable when compensation is provided during the term of the clause.
• Extending the ban on exclusivity clauses beyond zero hours contracts, to contracts where the worker’s guaranteed weekly income is less than the Lower Earnings Limit of £120 a week.
• A new right for casual workers to request a more predictable working pattern after 26 weeks’ service and requiring that workers receive compensation for shifts cancelled at the last minute.
• A potential requirement for workplaces to have a menopause policy (following the UK Parliament’s Women in Equalities Committee’s inquiry into the extent of discrimination faced by menopausal people in the workplace).

Government consultations during 2022 are also expected to cover a new legal obligation for employers to provide basic references for all employees, aimed at removing the threat of no reference being used to force a settlement.

Whether or not an Employment Bill is ultimately forthcoming in 2022 or our world starts to settle into a new normal, it is clear that the pace of change is unlikely to slow in 2022. The legacy of this historical period in our lifetimes will continue to have a profound impact on the workplace, and developments and changes driven by or simply delayed by the pandemic will add yet more to the HR to-do list.