As we know, the Employment Bill pledged in 2019 was not announced in the recent Queen's Speech. Does this mean many proposals may not be carried forward at all, and, more importantly, what draft legislation was announced that could affect Employment law?
What employment law proposals are we still waiting for?
As a reminder the proposals either announced in 2019 to be included in the Employment Bill, or pledged as forthcoming legislation and therefore expected to have been included are:
- Extending the period of redundancy protection for expectant and new mothers returning to work after maternity leave until six months after the end of maternity leave (and possibly changes to other types of family leave).
- Introducing the right to additional paid neo-natal leave for parents whose children spend two or more weeks in neo-natal care.
- Providing a day-one right to one week’s unpaid leave per year for employees who are carers – pro-rated for part-time employees.
- Introducing the right to request a more predictable work contract.
- Establishing a single enforcement body for employment rights.
- Introducing a potential day-one right to request flexible working as a “default” option, whilst retaining the eight business grounds for refusal and other aspects of the current right to request flexible working.
- Strengthening the rules on tips and service charges so that they are passed on to workers in full. However, it was reported on 5 May 2022 that a senior Government official has said that this planned legislation has been dropped for the foreseeable future.
Following the Queen’s Speech last week, the TUC and CIPD suggested that many confirmed Employment law proposals may not come to fruition at all with the next election scheduled for 2024. In an announcement the same day as the Queen’s speech, the Government highlighted what it is doing for workers. It included several points about the National Minimum Wage (as well as other measures introduced by the Labour Government 15-20 years ago), changes the Government introduced two years ago, as well as more current issues, namely “tackling appalling business practices, such as P&O Ferries…” (see our article on the outcome of that here).
One extension of legislation cited in the statement, pledged for later this year, is to widen the ban on the use of “exclusivity” clauses for those whose guaranteed earnings are at or below the Lower Earnings Limit (currently £123 per week). This means, as for those with zero hours contracts, employers will not be allowed to state in contracts that such individuals cannot work for another employer in another job. They will also be protected from unfair dismissal (employees) or detriment (employees and workers) for failing to comply with an unenforceable exclusivity clause. Whilst it is possible to measure the number of earners in this bracket, it is not possible to tell how many employers use such clauses, although submissions to the Government suggested it was few.
There was also the announcement last week of a new review on the future of work which states it will build on existing Government commitments including those made in response to the Taylor Review. Its terms of reference are to select a few key questions to focus on and then make recommendations. This further “review” could therefore change some of the proposals adopted as part of the Taylor Review.
What was announced in the Queen's Speech which could impact Employment law?
There are some other Bills employers need to be aware of:
Brexit Freedoms Bill
The Brexit Freedoms Bill seeks to remove the “supremacy” of Retained EU Law (EU law that was in place prior to Brexit but was transferred into UK law to ensure that laws remained the same for a smooth transition). It proposes to:
- Make Acts of Parliament made prior to Brexit not subject to interpretation in line with EU law where there is a conflict, and
- Allow UK laws to be changed from Retained EU law without Acts of Parliament. This means changes could be made by so called “secondary legislation” such as Regulations, which are not subject to the same level of scrutiny and debate by both Houses of Parliament and allow variations to be made by ministers.
The Government will also review whether the ability of the Supreme Court and Court of Appeal to depart from EU-derived case law should be extended to lower courts.
As many UK Employment laws were produced in tandem with EU law (some UK discrimination laws predated EU law, others were introduced through it), a bonfire of Employment law rights is not expected, nor likely to be welcomed by businesses or employee groups. It could, however, affect some claims relying on EU Treaty wording. Litigation brought by ASDA and Tesco staff claiming that they could compare the pay of shop floor workers with depot distribution staff relied on EU Treaty wording on Equal Pay, rather than the UK’s Equality Act 2010.
Data Reform Bill
The Data Reform Bill seeks to make changes to data protection legislation, in particular the UK GDPR and Data Protection Act 2018, to reduce the burden on business which it says creates excessive paperwork. It states that it will be looking to replace a tick box exercises with a more flexible, outcomes-focused approach, with the aims of increasing competitiveness and boosting the economy.
The concern by many is that in departing too far from the GDPR, the UK may lose the benefit of the EU’s “adequacy decision” which was adopted in 2021 and continues to allow the free flowing of data between the EU and the UK, despite the UK no longer being part of the EU. It has been estimated that losing the EU’s “adequacy decision” could increase business costs by over £1.6 billion over the next 10 years. On the other hand, if changes have to be minor to retain the adequacy decision, the boost to business and innovation will be hard to achieve.
Harbours (Seafarers’ Remuneration) Bill
In response to the actions of P&O Ferries, in dismissing without notice or collective consultation close to 800 employees, the Government has put forward perhaps the most that it can do in the circumstances – a Bill to ensure that seafarers working in UK ports and waters receive at least equal the National Minimum Wage. Ports would be given powers to surcharge ferry operators and ultimately deny them access to ports if they did not comply. Having promised tough action and proposed nine areas for change in response to P&O’s actions, only this Bill is likely to be realistically possible. As is shown in our article, criminal sanctions for the dismissals were not available in these circumstances. Protecting this from happening again could only be achieved by significant changes to the Trade Union and Labour Relations (Consolidation) Act 1992 (regarding collective redundancies).
Modern Slavery Bill
The Financial Reporting Council recently found that statements under the Modern Slavery Act 2015 for companies with a turnover of £36m or more were of low quality or significantly flawed in a large majority of cases. Such companies must provide an annual statement of the steps they are taking to ensure that modern slavery is not taking place in any part of their business or supply chains. The report suggested that some companies might be taking a purely compliance-based approach rather than understanding and addressing the underlying issues. The Bill will strengthen the current requirements by introducing mandatory areas of reporting and mandatory publishing of statements on a Government-run registry, bringing public bodies into scope, and introducing civil penalties for organisations that do not comply.
Bill of Rights
This Bill is designed to replace the current Human Rights Act 1998. It is significant because public bodies are currently required to interpret UK legislation in a manner which is compatible with the European Convention of Human rights (ECHR), including, importantly, case law which comes from the European Court of Human Rights (ECtHR) in Strasbourg. The Bill of Rights would, it has been proposed, retain the Convention rights that are currently protected under the ECHR (such as the right to respect for private and family life, home and correspondence; the right to freedom of thought; conscience and religion; and the right to freedom of expression). However, the main focus would be to ensure that UK courts no longer have to follow ECtHR case law from Strasbourg and cannot alter UK legislation by interpreting it through that lens. It is relevant to Employment law as many cases (such as whether a care worker was unfairly dismissed for refusing a COVID-vaccine and the Maya Forstater case on whether her philosophical belief that sex is immutable was protected under the Equality Act 2010) make reference to their Convention rights under the ECHR. The Bill of Rights also proposes a filtering stage to prevent spurious cases proceeding, although it would add in another layer of expensive litigation. The UK’s Equality and Human Rights Commission has produced an interesting document looking at some of the Government’s suggestions.
This is just the start of the Parliamentary Session; we will keep you updated on these Bills if and when they are progressed and become law.
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