Autumn 2022 - What to Expect in Employment Law
As we approach the end of summer, our employment expert summarises some key employment law developments on the horizon for autumn and beyond.
Legislative and Policy Change
So far, 2022 has not been a year for major statutory reform in employment law. The long-anticipated Employment Bill was noticeably omitted from the Queen's Speech earlier this year. The Government says the Bill will be introduced when parliamentary time allows, however there has not been any indication of when this might be. The Bill was intended to introduce changes including making the right to request flexible working a day one right, and extending redundancy protection in the context of pregnancy and maternity discrimination.
Whilst the all-singing all-dancing Bill has yet to be introduced, there have been some interesting legislative and policy developments in the areas set out below.
Statutory Code of Practice on "Fire and Re-Hire"
The Government has confirmed it will be issuing a Statutory Code to address 'fire and re-hire' practices. The Code will be intended to help employers approach these exercises fairly and lawfully. Tribunals and courts will be required to take the Code into account in relevant cases, and will have the power to apply an uplift of up to 25% to an employee's compensation where the Code applies and the employer has unreasonably failed to follow it.
In June 2022, Lord Callanan informed the House of Lords that the draft Code would be published for consultation in summer 2022. It hasn't been released yet, so we anticipate consultation could open in the autumn.
Industrial Action and Trade Unions
Against the backdrop of a summer of strikes, The Government has legislated in an attempt to reduce the disruption caused by industrial action. Two pieces of legislation came into force on 21 July 2022:
- The Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022 (SI 2022/699) quadruples the maximum damages that can be awarded against a trade union where industrial action is found to be unlawful.
- The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 abolishes the rule that prevented agencies from supplying an employer with temporary workers during a strike or industrial action.
Neonatal (Leave and Pay) Bill
Paid leave for the parents of babies in neonatal care was supposed to be introduced by the Employment Bill. Given the uncertainty around if and when that Bill will be introduced, a Private Members' Bill was introduced on neonatal leave alone. Under the Bill, parents whose babies are admitted to neonatal care up to the age of 28 days, and who stay in hospital for at least seven days, would qualify for a day one right to take up to 12 weeks' leave and statutory pay. This right would be in addition to other family related rights such as the right to take maternity leave, paternity leave or shared parental leave.
The government has confirmed it backs the Bill. Given this, we expect to see the Bill pass relatively smoothly through Parliament and shortly become law.
Case Law Development
In addition to the changes above, 2022 has been an interesting year in case law. We have commented previously on the landmark Supreme Court judgment in the Brazel case. In addition, there are some key areas which we expect to see continue to develop into the autumn and beyond.
Manifesting Protected Beliefs
Case law over the last year or so has cemented the concept that a wide spectrum of beliefs are capable of being protected in law under the Equality Act 2010, even if they might be viewed as unpalatable by some. Recent case law has focused on the five Grainger criteria, and in particular the requirement that a belief must be capable of respect in a democratic society in order to be worthy of protection. We now know that 'gender critical' beliefs are capable of being protected beliefs, and in the cases of Forstater v CGD Europe, and Bailey v Stonewall Equality Ltd and others, the claimants were discriminated against and victimised because of their beliefs.
Other cases on similar points continue to make their way through the Tribunal and courts system. Higgs v Farmor's School is due to be listed for a full EAT hearing after one of the lay members hearing the appeal was recused. In Mackereth v DWP and Others, Mr Mackereth has sought permission to appeal to the Court of Appeal.
Long-COVID and Disability
Long-COVID is a condition that is likely to take some time to fully understand. It can be difficult for employers to navigate issues relating to long-COVID in the workplace because it is a condition that affects sufferers very differently. We are now beginning to see the first long-COVID claims, such as Burke v Turning Point Scotland, coming up through the Tribunals. It is important to keep abreast of the way the Tribunals are approaching these claims, in order to help employers manage any long-COVID related issues in the workplace.