The pattern of the last couple of years, combined with the current uncertainty over who might be at 10 Downing Street, makes significant statutory changes to employment law seem even more difficult to predict. In an article first published in Legal Brief, Charlie Thompson surveys the employment law landscape in 2022.
More than two years have passed since the post-election Queen’s speech containing the new government’s Employment Bill. Dust continues to gather on that bill, and it is not clear when it will go before parliament – it will be when “parliamentary time allows”. Notably, it did not feature in the May 2021 Queen’s speech.
Sticking to the status quo?
In the last 12 months there have been announcements of proposed changes to the law, but few notable changes have been made. The business secretary announced a post-Brexit review of employment law in January 2021, only to scrap it a few weeks later.
Other changes which have been proposed have tended to be pro-employee. These include a proposed extension of redundancy protection of pregnant employees until six months after their return from maternity leave, imposing a duty on employers to prevent sexual harassment, regulating the use of NDAs in settlement agreements and entitling workers to request flexible working from “day one”, rather than having to wait 26 weeks. However, it remains unclear whether these changes will go through and in what form.
Some commentators query how far-reaching these changes will genuinely be. Using flexible working reform as an example, since discussions about working patterns are likely to take place before day one (during recruitment), the right to only request a change on day one may only be cosmetic, especially if the grounds on which employers can refuse requests are not narrowed.
The pattern of the last couple of years, combined with the current uncertainty over who might be at 10 Downing Street, makes significant statutory changes to employment law seem even more difficult to predict.
Cases to watch
There is more action in the courts and tribunals. Two cases to watch this year reflect wider debates and culture wars in society. The first is marketing agency Wunderman Thompson’s anticipated appeal against the Employment Tribunal’s ruling that the employer unfairly dismissed, victimised and discriminated against two male employees during its attempts to address its gender pay gap and “obliterate” its reputation as a “Knightsbridge boys club” made up of “straight white men”. Shortly after the Tribunal’s judgement last summer, the employer signalled its intention to appeal.
We have seen growing scepticism amongst employers, customers and investors towards employers which fail to make sufficient progress in relation to diversity and inclusion. Indeed, the FCA recently called upon regulated firms to do more, and organisations have lobbied the UK government to introduce more thorough pay gap reporting requirements. The gender pay gap has shown little sign of decreasing, and the pandemic has potentially made the situation worse. And this pressure goes beyond the gender pay gap. Calls for employers to report pay data in relation to disability and ethnicity continue to be made.
This case shows employers under increased pressure to make progress and that whilst there are no serious arguments against diversity and inclusion in the workplace, implementing substantial internal changes carries the risk of committing unlawful discrimination.
Another case to watch is similarly charged. In 2021, the Employment Appeal Tribunal ruled that Maya Forstater’s gender critical belief (which included that sex is immutable and that transgender women are men) qualifies as a protected characteristic under the Equality Act 2010. The case will go back to the Employment Tribunal to determine whether the Center for Global Development’s decision not to renew Ms Forstater’s contract amounts to unlawful discrimination.
The Employment Tribunal system remains burdened by delays, but this year we will start to see more cases emerging from new working conditions during the pandemic. Indeed, recent Tribunal statistics show a record number of Tribunal decisions relating to the refusal of flexible working requests.
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