Employment Roundup 2022

2022 Employment Law Roundup

Changes to Legislation

Changes to Flexible Working Requests:

The Government published its response to last year’s consultation on updating flexible working hours. 

  • The right to request flexible working is currently only available to employees with 26 weeks or more continuity of service. This will now become a day one right.
  • Employees will be allowed to now make two requests in a 12-month period and the employers will need to respond within two months not three.
  • There will be a new duty to discuss alternatives to the request should the employer intend to reject it, it must discuss whether there are alternative forms of flexible working available.

Prevention of Sexual Harassment:

The Worker Protection (Amendment of Equality Act 2020) Bill will introduce the duty on employers to prevent sexual harassment in the work place and re-introduce protection from third-party harassment, the latter applying to all protected characteristics.  This bill also proposes that employers will be liable from the first instance where they have failed to take reasonably practicable steps to prevent it.

Changes to NMW

  • NLW 23+                            £10.42
  • NMW 21-22                       £10.18
  • NMW 18-20                       £7.49
  • NMW 16-17                        £5.28
  • Apprentice Rate                 £5.28

Statutory maternity, paternity, adoption, shared parental and parental bereavement pay will increase to £172.48 per week.

The rate for statutory sick pay will increase to £109.40 per week.

These come into force on the 6th April 2023.

2022 Case Law 

Rectification of Contracts – Nexus v RMT & Unite [2022] EWCA Civ 1408

This case appears to be a prime case to go to the Supreme Court as the Court of Appeals Judgment for this matter appears not to be binding on the ET, as the case was dismissed for suing the wrong people. The provisional view is that the Employment Tribunal (ET) does not have the power to order rectification in wage claims, in determining what is properly payable. 

Disability Discrimination – Hilaire v Luton Borough Council [2022] EAT 166

Whilst the ET found that requiring the Claimant to attend an interview as part of the redundancy selection, it did not place him at a disadvantage. The Employment Appeals Tribunal (EAT) held that the Tribunal applied the wrong test when considering the disadvantage, and that it should have considered if it was more difficult for him to attend the interview due to his disability which could have hindered his effective participation. The EAT held that the Tribunal were still entitled to dismiss the claim as it was the Claimants loss of confidence in the Council that prevented him from attending the interview. 

Disability Discrimination – Morgan v Buckingham Council [2022] EAT 160

This case was regarding a social worker who was giving gifts to a child she was responsible for without prior authority from her line manager. The ET found she had been dismissed fairly and her subsequent appeal was dismissed. The Tribunal found that she had breached her professional duties and could not be confident she would not repeat the conduct. The Tribunal also found that it was a proportionate means of achieving a legitimate aim and was for the maintenance of professional boundaries to protect vulnerable children. 

Mitigation of loss – Hilco Capital Ltd v Harrington [2022] EAT 156 

The Claimant was unfairly dismissed for whistleblowing and before her remedy hearing did not apply for any jobs before due to concerns that she will be stigmatised by future employers. At the remedy hearing the Tribunal did not reduce the compensatory award for an unreasonable failure to mitigate losses, accepting the Claimant’s concerns that job-seeking was pointless as she would be stigmatised by future employers as a whistleblower. The case has been remitted to the Tribunal for further findings. 

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