Employment law: Plans in the Pipeline

Consulting on proposals to introduce new employment rights has been an important government initiative in recent months. This article summarises some of the key proposals.

At the end of 2018, the government published its Good Work Plan, setting out what it described as “the biggest package of workplace reforms for over 20 years”. As a result, a number of proposals have been put to consultation which could, if implemented, substantially update employment legislation in Great Britain.

Extending redundancy protections for new parents and expectant mothers

Pregnancy and maternity discrimination are unlawful under the Equality Act 2010, and those on maternity leave have special protection in a redundancy situation. However, this protection currently does not extend to women who have returned to work after their maternity leave has ended. Research undertaken by the Department for Business, Energy and Industrial Strategy suggests that this has resulted in a significant justice gap, with one in nine women stating that they were dismissed or made redundant upon their return to work after maternity leave, or that they were treated in such a way that they felt forced out of their job.

A consultation seeking views on extending redundancy protection for new parents and expectant mothers concluded in April this year. In particular, participants were asked to comment on proposals to extend the redundancy protection period for six months and to afford the same protection to parents who have taken adoption leave and shared parental leave. The majority of the 643 responses received agreed with these proposals.

Following the consultation, the government has committed to:

• Ensure the redundancy protection period applies from the point the employee informs the employer that she is pregnant, whether orally or in writing;
• Extend the redundancy protection period by six months once a new mother has returned to work; and
• Extend redundancy protection into a period of return to work for those taking adoption and shared parental leave.

No timescale has been provided for bringing these changes into law yet.

Parental leave and neonatal pay

Additionally, former Prime Minister Theresa May launched a consultation into parental leave, saying “it is not fair and not right” that some parents have to return to work before their new-born baby even leaves hospital.

Currently, the two-week statutory parental leave period means many fathers must return to work while a premature baby is still in hospital. Research by neonatal charity Bliss found that 36% of fathers and partners take sick leave while their baby is in neonatal care.

The consultation seeks comments on a wide range of issues related to parental leave and proposes measures including entitling parents of premature babies to one week of paid leave for every week their baby is in hospital. The consultation also looks into whether companies should be required to publish their parental leave and pay policies and whether they offer flexible working. The consultation closes on 29 November 2019, however sections 2 and 3 (neonatal and transparency) close on 11 October.

Stronger sexual harassment protection

In light of the #MeToo campaign, the government has announced plans to introduce new legislation to prohibit the use of confidentiality clauses to prevent individuals from disclosing information to the police, health workers or professional advisers such as doctors, lawyers and social workers.

Non-disclosure agreements (NDAs) or confidentiality clauses are often used by employers in contracts of employment and settlement agreements for legitimate purposes, such as protecting trade secrets and information about a company’s clients. However, in recent years there have been numerous examples of these agreements being abused by employers to prevent employees or former employees from revealing incidents of bullying and sexual harassment.

The proposed legislation follows on from a consultation in March this year, and it is anticipated that the new laws will focus on ensuring that employers make the limitations of confidentiality clauses clear to employees and also requiring employees to take independent legal advice before an NDA becomes legally binding.

It is anticipated that the new legislation will be complimented by guidance on the appropriate use of NDAs from ACAS and the Equality and Human Rights Commission.

Meanwhile, a separate consultation has been launched by the government’s Equalities Office, which seeks views on whether it should introduce a new duty on employers to prevent staff from being sexually harassed at work. In particular, it asks whether existing legal protections for employees and workers should be extended to volunteers and interns, whether the time limit for bringing a sexual harassment claim in an employment tribunal should be extended and whether a previously repealed law which made employers liable for harassment of their employees by a third party (such as customers) should be reinstated. The consultation closes on 2 October 2019.

Improving protection for sick employees

The Department for Work and Pensions and Department for Health and Social Care have launched a consultation entitled “Health is everyone’s business: Proposals to reduce ill health-related job loss,” which seeks views on different ways in which the government and employers can take action to help disabled people and people with health conditions stay in work.

The proposals include giving employees with health conditions the right to request workplace adjustments on health grounds, entitling employees returning from a period of sickness absence to a flexible, phased return to work funded partly through their statutory sick pay (SSP) entitlement and partly through their usual wages and fining organisations that do not pay staff the SSP they are entitled to.

The consultation closes on 7 October 2019.

Creation of a single employment enforcement body

The Department for Business, Energy & Industrial Strategy has published a consultation seeking views on whether establishing a new single enforcement body for employment rights could improve enforcement for vulnerable workers and create a level playing field for the majority of businesses who are complying with the law.

This consultation was launched in response to criticism that the current system of enforcing employment rights is unclear and unfit for purpose, with numerous organisations enforcing different aspects of the employment law regime and a lack of tangible enforcement powers for those organisations.

Participants are invited to provide answers to 35 questions, ranging from whether they think that the current system is effective in enforcing the rights of vulnerable workers to whether breaches of employment rights should be published. The consultation is open until 6 October 2019.

Measures to address one-sided flexibility

One-sided flexibility arises where a worker has no guarantee of work, but is expected to be available at very short notice when required.

The government is seeking views on introducing a right to reasonable notice of work schedules, how this should be recorded and whether there should be a penalty for non-compliance. It also seeks views on the extent of the current problem of shifts being cancelled or reduced at short notice and what level of compensation should be given to workers where last minute changes are made. The consultation confirms the government’s intention to introduce a right for all workers to switch to a more predictable work pattern. The consultation closes on 11 October.