Employment law update 

28 February 2022

What’s likely to be new in employment law this year?

The Covid-19 pandemic has resulted in many proposed changes to employment legislation being either delayed or postponed. Although it is anticipated that the Government may publish the Employment Bill, originally announced in the Queen’s Speech in December 2019, either later this year or early 2023, a legislative timetable has been notably absent from Government updates and is yet to be announced. 

We expect many of the recommendations outlined in the Good Work Plan to feature in the Bill and strongly recommend that employers familiarise themselves with these proposed potential changes with a view to updating their relevant policies and training programmes, as and when those changes are implemented: 

  1. Revocation of mandatory vaccination for health and social care providers. Following intensive lobbying by the healthcare sector, the Secretary of State announced that the Government would revoke the regulations introduced in November 2021 to require all healthcare workers to be vaccinated against Covid. This revocation was the subject of a consultation which closed on 16 February 2022. 
  2. Single enforcement body for employment rights. A single regulatory body will be set up to tackle a range of issues, including modern slavery (on which the Home Office has just published new guidance), minimum wage breaches and statutory entitlements. To avoid penalties for non-compliance, employers should ensure their internal policies and procedures can withstand scrutiny when this body comes into effect.
  3. Right to flexible working. It is proposed that all employees will have the right to request flexible working arrangements from day one of their employment, rather than requiring 26 weeks of employment prior to gaining such an entitlement. This is an important issue for employers to address in the light of pandemic-related changes to working patterns and an increase in the demand to work from home. 
  4. Unpaid carer’s leave. The Government intends to introduce the right to carer’s leave. This will allow employees responsible for caring for someone with long term care needs, one week of unpaid leave. Again, this is intended to be a day one right for employees. 
  5. Pregnancy and maternity leave redundancy protection. Redundancy protection is due to be extended for pregnant employees from the time they inform their employer until six months after the end of their pregnancy or their return from maternity leave.
  6. Sexual harassment at work. New legislation is proposed requiring employers to take “all reasonable steps” to prevent sexual harassment at work, specific protection for volunteers and interns, and third-party harassment. It is also considering whether to extend the time limits for bringing a claim under the Equality Act 2010 from the current 3 months to 6 months.

 National Disability Strategy. The Government has pledged a number of actions to help disabled people return to the workplace as part of a National Disability Strategy. The Government will also be consulting on making the Voluntary Reporting Framework mandatory for employers with 250 or more employees.       

Case Update 

Court of Appeal finds against Pimlico Plumbers 

Gary Smith v Pimlico Plumbers 

The 2018 Supreme Court ruling that Gary Smith was a worker rather than a self-employed individual in the long running Pimlico Plumbers’ case, opened the way for him to pursue additional claims, including that for holiday pay. Both the Employment Tribunal and the Employment Appeal Tribunal rejected this particular claim because it was out of time. Mr Smith’s case hinged on precedence from King v Sash Windows where the European Court of Justice ruled that workers who did not take annual leave because their employer refused to pay for it, cannot be prevented from carrying over and accumulating such leave until the termination of their employment. Mr Smith appealed to the Court of Appeal which handed down its judgment on 1 February 2022 in Mr Smith’s favour, upholding the ECJ ruling and determining that he can claim for six years’ worth of unpaid holiday. This case reinforces how important it is for employers to classify their workforce correctly, as getting the classification wrong can have costly consequences. It also underlines the importance of not only actively and openly encouraging workers to exercise their right to take paid holiday, but also making them aware that they will lose that right if they fail to take their leave by the end of the year. 

Should you require any guidance in respect of holiday entitlement or your holiday policy, please do not hesitate to contact a member of our employment team.  

Tina Chander
Partner, Head of Employment
[email protected]
+44 1926 884687
Gemma Clark
[email protected]
+44 1926 732517