Employment Law challenges for the construction sector in 2022

Employment Law challenges for the construction sector in 2022

Flexible Working

In the past, the construction sector hasn’t had to tackle the concept of flexible working. On the face of it, the two do not marry up well, with location-based work, long shifts with hourly pay for site workers, and commercial requirements to get projects done on time and on budget. This lack of flexibility is also often connected to the lack of gender diversity across the sector.

Legislative change is expected to be announced in Spring 2022 that will make flexible working a right from day one via the new UK Employment Bill. Employers will still be able to reject a flexible working request, but it highlights the progression of how flexible working is now viewed and expected in society.

Understandably, a concern of many construction employers will be: how can we implement flexible working without having a negative impact on output? A recent Construction Pioneers programme between Timewise and Build UK looked to assess what shape flexible working could take and how effective it could be. Flexible working pilots were introduced across 4 major construction firms including BAM Construct, BAM Nuttall, Skanska UK, and Willmott Dixon – the pilots focused on:

  • Providing staff with input into their working patterns (e.g. staggered start times, facilitating staff to cover for each other)
  • Increasing home-working for desk-based site workers
  • Changing cultural attitudes and behaviours to move away from the ‘all staff on site’ mentality
  • Improving manager capability to implement flexible working

The results of the programme demonstrated that output did not have to suffer because of flexible working, with no detrimental effect on the budget or projects for any of the pilot sites. The programme also demonstrated that even a small amount of flexibility can have a big impact on peoples’ lives. It was also considered that flexible working can have a leading role in increasing representation of women in the sector, as well as improving the mental wellbeing of its employees and attracting a more diverse talent pool. If you would like to view the report in detail, it is available here.

Workplace Harassment

The findings of the Government Equalities Office consultation on tackling sexual harassment in the workplace were published in July 2021 with 62% of responses coming from women, and 54% of overall respondents advising that they had experienced harassment at work. In response to this, a new statutory duty is to be introduced for employers to prevent sexual harassment in the workplace, and statutory workplace protections against third party harassment will also be re-introduced in a new form to previous legislation that was in place until 2013. The Government has advised that they intend to pass legislation as soon as parliamentary time allows, so we expect to see action this year.

Both duties will require employers to take “all reasonable steps” to prevent sexual harassment in the workplace. As mentioned above, given the lack of gender diversity across the construction sector, inappropriate workplace behaviours have the potential to arise. Construction sector employers should be aware of this and look to ensure they can prove that they have taken all reasonable steps to eliminate such behaviours – this will be through training, enhanced reporting measures, displaying notices in the workplace, and updated company policies and contracts.

Single Labour Enforcement Agency

Another reform on the way is the establishment of a single labour market enforcement agency. This body will be responsible for enforcing the basic rights of vulnerable workers, and consolidates three labour market enforcement bodies of the Employment Agency Standards Inspectorate, the Gangmaster and Labour Abuse Authority, and the HMRC National Minimum Wage Team. It will have increased powers and will look to enforce claims relating to wage arrears, statutory sick pay, and holiday pay among a host of other issues. The enhanced power of the single body should be a warning bell for construction employers that may have previously fallen short of standards and interacted with the labour enforcement agencies in their previous form. Diligence will be needed to ensure all pay practices are correct and in line with the required standard, which can of course be challenging with a large frontline workforce that is paid hourly.

Right to Work Requirements

There are upcoming changes to the methods for carrying out right-to-work (RTW) checks. The Home Office has advised that the Covid-19 adjusted measures allowing video calls and scanned documents to be used will cease on 1 October 2022. This was expected to be 6 April 2022, however, the Government has again extended this deadline to allow employers time to make appropriate adjustments. In their place, a new system of digital checks will be available that will require original documentation to be checked using verification technology. These checks will only be available for British and Irish Citizens, along with the usual manual checks. The digital checks will be provided as an alternative to the manual version for convenience but will also incur a charge, according to the Recruitment & Employment Confederation – this is expected to range from £1.45 to £70 per check. Changes will still occur on 6 April 2022 for holders of a Biometric Residence Card, Biometric Residence Permit, or Frontier Work Permit as they will no longer be able to have their RTW checks carried out manually, regardless of the expiry date of the card/permit, and employers will only be able to check holders’ eligibility online via the Home Office Immigration database.

Status Right-to-work check method

Migrants with standard work or residence permit, to include:

  • Biometric Residence Card
  • Biometric Residence Permit
  • Frontier Work Permit
Online RTW checks on Home Office Immigration database (no cost)
British and Irish Citizen

Online via new Digital Service (£1.45 – £70)


Manual (no cost)

It’s important to ensure that RTW checks are carried out on all employees to avoid discrimination, and to carry these checks out before commencement of employment. It is also crucial to be diligent when carrying out checks, as strict civil and criminal penalties still remain. If you fall foul of these, you can be sent to jail for up to five years and receive an unlimited fine for employing someone who you knew or ‘had reasonable cause to believe’ did not have the right to work in the UK. You can also be fined for employing an ineligible employee by not carrying out the correct checks or carrying them out properly. This can result in a fine of up to £20,000 per worker.

Further guidance on the Government’s right to work checks can be found here.

You might also be interested in the following articles:

Legal disclaimer

Stay up to date with the latest news and insights

Sign up now