Employment Bill – changes to watch for in 2022
The FTI Consulting General Counsel Report 2022 cites that 86% of GC and Chief Legal Officers are involved in health and/or people-related issues within their organisations, particularly with the changes following the pandemic.
It is therefore crucial for these legal functions to have an understanding of any changes to employment law, so they can support employees in their roles, be an advocate for company culture and reduce business risk.
Employment law in 2022 is a watching brief for in-house counsel as we all await an update on the much-anticipated new Employment Bill. The Employment Bill was first included in the Queen’s Speech over three years ago but was notably absent from this year’s reading.
Best practice would dictate that in-house counsel looking to get ahead of the game should start closely monitoring this area now, as when the Bill does eventually proceed it is likely to have implications far beyond HR teams. The Employment Bill promises a single labour market enforcement body, a right to request a more predictable contract, changes to flexible working and statutory paid leave for parents with babies in neonatal care.
However, it is the proposed changes to sexual harassment legislation that will interest all in-house counsel, even if employment issues don’t normally fall within their remit. The Bill plans to introduce a new positive duty to prevent sexual harassment on all employers opening the possibility of liability for third party actions. The changes, once implemented, will require a full review of the steps organisations are taking to prevent sexual harassment in the workplace. Having internal facing policies and training for direct employees will no longer be sufficient, as claims could arise from the actions of third parties including suppliers and customers.
Employers will be able to defend claims if they can establish they have taken “all reasonable steps” to prevent harassment. This is likely to be a high threshold to overcome and employers will need to consider “all” possible steps that would have been reasonable for them to take. This is likely to include an analysis of whether the employer has sought to prevent harassment through their contractual arrangements with third parties. It is therefore likely that in-house counsel will need to review their contractual terms with customers and suppliers to ensure appropriate contractual obligations have been included and that any external facing policies are properly incorporated into the documents. This will all need to be completed, signed off and executed, before the new legislation comes into force.
We will be detailing any developments over the coming year and beyond in our regular employment bulletins and in future Inhouse Insights too, make sure you subscribe here.