2022 kicked off with a bang as the Omicron variant, which surfaced in late 2021, caused a surge in COVID-19 cases.
As a result, we have already seen a number of changes to rules on self-isolation, as well as the return to work from home guidance and mask wearing in most public settings for the first few weeks of the New Year.
With the pandemic continuing to cause disruption to the manufacturing and supply chain sector (‘the Sector’), it is easy to be distracted from key legal developments, of which we are expecting to see plenty as the year progresses. We have set out some of the crucial developments on the horizon in 2022, which are likely to be of significance within the Sector:
Business Immigration
Setting aside the impact of the pandemic, the current workforce and HGV driver shortages have proved a top priority across the Sector, together with employers having to get to grips with the ever-changing landscape of business immigration.
2022 is set to be another busy year for employers, with big changes due in Spring, including three new routes to immigration:
- Global Business Mobility Visa – expected to give businesses more flexibility to move staff around internationally, establish a business in the UK and second teams (as opposed to just individuals) to UK sites;
- Scale up Visa – expected to provide a fast track visa route for qualifying scale up companies to facilitate highly skilled migration to the UK; and
- High Potential Individual Visa – expected to be an unsponsored route that allows graduates from “top global universities” to come to the UK for work - we understand that there won’t be a job offer requirement nor minimum skill/salary levels that must be met before coming to the UK.
Personal Protective Equipment (PPE)
All employers are already under a pro-active, positive legal duty to ensure that suitable personal protective equipment (“PPE”) is provided to employees who may be exposed to a risk to their health or safety whilst at work. As of 6 April 2022, the Personal Protective Equipment at Work (Amendment) Regulations 2022 comes into effect, and amends the Personal Protective Equipment at Work Regulations 1992 to now require employers in Great Britain to ensure that ‘workers’ (which can include ‘limb B’ workforce e.g. agency staff, casual / irregular workforce, labour-only contractors, or those who otherwise work outside of the normal ‘contract of employment’ relationship) as well as employees, are supplied with adequate PPE and have sufficient information, instruction and training on the use of PPE.
The precise impact for your business may well depend on how you already engage with or appoint ‘limb B’ workers, but it is likely to mean more risk assessments, PPE suitability assessments and availability of PPE across your business. Employers remain responsible for the maintenance, storage and replacement of any PPE provided and likewise, workers are under a duty to ensure that PPE is used in accordance with training and instruction from their employers and will be under a duty to report defective and/or lost PPE.
Employment Bill
Perhaps unsurprisingly, the Employment Bill which was initially mentioned in the 2019 Queen’s Speech, did not progress through Parliament in 2021. The Bill is timetabled for attention this year, however, this is “when parliamentary time allows” – and so if and when this occurs remains to be seen.
The Bill’s main purpose is to build upon existing employment law with measures that protect those in low-paid work and the gig economy and seeks to introduce many of the recommendations made by the 2018 Good Work Plan such as:-
- The establishment of a single labour market enforcement agency to better ensure the protection of vulnerable workers;
- Statutory parental neonatal leave and pay of up to 12 weeks where a baby requires neonatal care;
- The right to request a more predictable and stable contract after 26 weeks service for those with variable and unpredictable hours;
- A right to one week of unpaid carers’ leave;
- A right to reasonable notice of working hours and compensation for short notice shift cancellation; and
- Tips and service charges being paid to workers in full.
Sexual Harassment in the Workplace
In July 2021 the government published its response to the consultation on sexual harassment in the workplace. This confirmed that the government intends to introduce legislation which will place a duty on employers to prevent sexual harassment and also provide new protection from harassment by third parties, such as customers or clients. To support this, we are expecting a new statutory Code of Practice and guidance for employers.
Although no definitive timescale has been given as to when these new duties will come into effect, it is anticipated that draft legislation will be produced in 2022. In the meantime, employers ought to address their minds as to what steps they can take to prevent unacceptable behaviour.
Gender Pay Gap Reporting
Businesses with over 250 employees are obliged to publish a yearly report outlining data on their gender pay gap. Due to the pandemic, the deadline for reporting was extended by six months to 5 October 2021.
As it currently stands, the 2022 deadlines are set to revert to the normal timescales. For public sector employers, the deadline is 30 March 2022, providing a snapshot of the workforce as of 31 March 2021. For private sector employers and voluntary organisations, the deadline is 4 April 2022, with a snapshot date of 5 April 2021.
The detailed rules governing gender pay gap reporting are set to be reviewed in 2022, however, any changes are likely to be subject to consultation before being introduced. These changes may see the introduction of ethnicity pay gap reporting.
Occupational Road Risk
Often, employers’ think any obligations in relation to occupational road risk sit primarily with their drivers or that any incident would simply be covered by any motor insurance policy. However, health and safety duties also apply to employers in this area.
In November 2021, the Health and Safety Executive (HSE) guidance on ‘work-related road risk’ was updated to clarify responsibilities for legal compliance in this area which includes ‘grey fleet’ – vehicles owned by private users but used for business purposes.
Driving for work can be one of the most dangerous activities workers can undertake, and employers have obligations to ensure that they have adequate ‘occupational road risk’ and ‘driving at work’ policies.
These policies typically provide arrangements for matters such as scheduling deliveries, fatigue management, licence checks, lone working, and vehicle maintenance. Legal obligations apply under the Health and Safety at Work Act 1974 to ensure that employers have pro-actively ensured the health, welfare and safety of its workforce (employees and workers) in relation to ‘occupational road risk’, so far as is reasonably practicable.
However, for the first time, the guidance has expressly made clear that organisations can also be held criminally liable for Gross Negligence or Corporate Manslaughter, should there be failings by senior management against the required legal standard and should those failings cause death.
Any health and safety criminal prosecution may result in uninsurable, unlimited financial penalties and employers are well advised to review existing policies, procedures and arrangements to ensure they offer suitable protection.
BS ISO 45003: 2021 – Occupational Health and Safety Management: Psychological Health and Safety at Work
Trade unions, external agencies such as the charity ‘Mind’ and others, have longer campaigned for more to be done within the workplace in relation to mental health issues.
In June 2021, a new ISO standard was introduced with further practical guidance on managing psychological risks in the workplace. Mental health, well-being and stress is already something which employers should be taking steps to pro-actively manage in the workplace.
HSE recommend that businesses follow the ‘management standards’ approach to best risk assess factors which can impact on workers mental health, and the new ISO 45003 reinforces this and provides further guidance on how to improve the working environment. With regulatory attention likely to increase in this area in 2022, it is worth employers re-examining their HS/HR policies and arrangements in this regard.
Modern Slavery Act
In or around September 2020, the government announced their proposals to strengthen the Modern Slavery Act 2015, which have not yet come to fruition.
The anticipated changes include:
- Mandatory information to be included within modern slavery statements;
- Statements to be published on a government-run reporting service;
- A single reporting deadline; and
- Civil penalties for non-compliance.
Manufacturers may wish to take preparatory steps ahead of these changes by reviewing their current modern slavery statements to identify areas which may require further action, review associated policies and procedures and ensure that their modern slavery statement aligns to best practice set out in statements published by other businesses within the Sector.
Menopause in the Workplace
The menopause and the impact this has in the workplace has been a very topical issue throughout 2021. In July, the House of Commons Women and Equalities Committee launched an enquiry into existing discrimination legislation and working practices around the menopause, which we contributed to.
Employment Tribunal claims referencing the menopause have tripled in the last three years and many more employers are becoming alive to the issue. We are assisting clients with policies and training aimed at supporting employees who are going through the menopause and will focus upon the topic as part of our ongoing reproductive health campaign.
Statutory Rates of Pay
The DWP has already published its proposed increases to statutory benefit payments and National Minimum Wage rates which will come into effect from April 2022.
Statutory Sick Pay is to increase to £99.35 per week, and statutory maternity, paternity, adoption and shared parental pay together with maternity allowance will increase to £156.66 per week.
From 1 April 2022, the National Living Wage for workers aged 23 and over will rise from £8.91 to £9.50 and National Minimum Wage rates will also increase as follows:
- 21 – 22 years old - £9.18
- 18 – 20 years old - £6.83
- 16 – 17 years old - £4.81
- Apprentice rate - £4.81
COVID-19 Case Law
The unprecedented and fast paced changes that were introduced in response to the COVID-19 pandemic meant that many employers had to make decisions based upon untested principles.
As the Tribunal system begins to return to normal, we are inevitably seeing more cases being heard arising from situations that happened during the pandemic. We will continue to report on cases as they are published, however, most recently a Tribunal decided that the fear of catching COVID-19 did not amount to a philosophical belief that would be protected under the Equality Act 2010.
Flexible Working Rights
The government's consultation on whether the right to flexible working should be a right from day one of the employment relationship closed on 1 December 2021. The consultation sought views on how to make flexible working the ‘default position’, which was a manifesto commitment from the government back in 2019.
It is anticipated that any changes will be limited to a right to request, with a view to encouraging discussions between the parties as to how a flexible working arrangement may work. Employers would retain the right to refuse requests where appropriate.
What Next?
As 2022 unfolds, we will continue to report and comment upon the expected Employment Law developments as and when they occur.
Employers within the Manufacturing and Supply Chain sector are urged to be proactive in regard to the above anticipated developments and to ensure that they are adequately prepared to implement the changes as the legislation takes effect, if not before.
How We Can Help Your Business
Our manufacturing and supply chain sector team work seamlessly across the business to provide true sector focussed support and solutions.
If your business is looking to proactively implement changes aligned to the anticipated developments in 2022, our sector team is here to help.
Please contact a member of our Employment Law team if you require further support and assistance.
