Update on Employment Law developments: Consultations and legislative proposals

Posted by Ruth Christy, 24th July 2019
It may be because Theresa May wanted the end of her premiership to be defined by something other than Brexit, or perhaps just a civil service rush to get documents out before the summer recess, but a number of new consultations and legislative developments have been published in the last few weeks.

Whether you’ve already had your well-earned summer break or are still looking forward to it, here’s the latest need-to-know reading on what’s in the pipeline for employment law.

Draft legislation published for private sector off-payroll working

We knew it was coming, but on 11 July HMRC published draft legislation and “Rules for off-payroll working from April 2020”. It has confirmed this measure will have effect for contracts entered into, or payments made, on or after 6 April 2020. Please see our previous article on these proposals.

Proposals to support families

Three separate consultations were launched on 19 July as part of the Good Work Plan initiative on proposals to support families:

  1. Parental Leave and pay: This looks at enhancing paternity pay, shared parental pay (in a similar way to enhanced SMP during the first 6 weeks) or increasing its length. This would be in conjunction with a review of maternity leave and pay and parental leave (and potentially pay) – or even a complete overhaul to move to a single “family” set of leave entitlements. This could remove some of the obstacles seen in the recent SPL cases of Ali and Hextall as discussed in our article for Reward Strategy. This consultation ends on 29 November 2019.
  2. Neonatal Leave and pay: This is to ensure those whose babies are born prematurely would benefit from up to the same amount of leave as others outside the hospital environment and not use up maternity leave/paternity leave while the baby is neonatal care. This consultation ends on 11 October 2019.
  3. Flexible working and family friendly leave policies: This consultation considers whether employers should be under a duty to consider whether a job can be done flexibly and advertise it as such. It also proposes requiring larger employers (250+ employees) to publish family related leave/pay and flexible working policies on their website. This consultation ends on 11 October 2019.

Employee health reforms

On 15 July 2019 the Government launched a consultation called Health is everyone’s business: proposals to reduce ill-health related job loss”. Key potential proposals are:

  • introducing a right to request work(place) modifications for employees with health conditions not covered under the duty to make reasonable adjustments established in the Equality Act 2010 (i.e. those who do not fall within the legal definition of disabled). This could operate in a similar way to the right to request flexible working;
  • strengthening statutory guidance for employers to encourage early intervention to support a sick employee to return to work;
  • reforming SSP to be better enforced and more flexible by amending the rules to enable an employee returning from a period of sickness absence to have a flexible, phased return to work. This also includes extending protection to those earning less than the Lower Earnings Limit (LEL) (currently £118 per week) who do not currently qualify for SSP;
  • focusing on Occupational Health (OH) support for employers. Many will remember the Government backed OH scheme, Fit for Work, which was introduced and then abandoned within less than 3 years. The Government proposes to co-fund the cost of OH support for SMEs, either through a subsidy or voucher scheme. Whether this slightly different approach to encourage OH support by employers will be any more successful remains to be seen.

The consultation closes on 7 October 2019.

Addressing one-sided flexibility for non-guaranteed hours

Again as part of the Good Work plan, on 19 July the Government published a consultation with proposals to provide workers with reasonable notice of work schedules, and compensation for shifts cancelled without reasonable notice.

This also includes the previously pledged right to switch to a more predictable work pattern. However, it is not yet clear whether the Government’s legislation on this would implement the Low Pay Commission’s recommendation of a “right to switch to a contract which reflects the normal hours worked” and require an employer to justify any refusal according to certain conditions.

The consultation closes on 11 October 2019.

Crackdown on misuse of NDAs in the Workplace

On 21 July the Government announced proposals to produce legislation which will crack down on the misuse of non-disclosure agreements (NDAs)/confidentiality clauses in the workplace. The final proposals in the Government Response include:

  • legislating so that no provision in a confidentiality clause can prevent disclosures to the police, regulated health and care professionals and legal professionals;
  • legislating so that limitations in confidentiality clauses are clearly set out in employment contracts and settlement agreements;
  • producing guidance for solicitors and legal professionals responsible for drafting settlement agreements (this would presumably be in addition to guidance already in place from the Solicitors Regulation Authority and the Law Society – it will be interesting to see whether the new guidance will also apply to those who are not solicitors and legal professionals);
  • legislating to enhance the independent legal advice received by individuals signing confidentiality clauses in settlement agreements so that they clearly understand the limitations;
  • enforcement measures for confidentiality clauses that do not comply with legal requirements in written statements of employment particulars and settlement agreements, e.g. making the clause void in settlement agreements or allowing for compensation in written statements.

The Government does not commit to any timetable for the legislation, simply stating it will be implemented “when Parliamentary time allows”.

Single enforcement body for Employment law rights

Once more as part of the Good Work Plan, on 16 July the Government published a consultation on establishing a new single enforcement body for employment rights. It considers the case for a single body to:

  • extend state enforcement, delivering commitments to enforce holiday pay for vulnerable workers and regulate umbrella companies;
  • offer a strong, recognisable single brand so individuals know where to go for help;
  • better support for businesses, including coordinated guidance and communications campaigns;
  • pooled intelligence and coordinated enforcement action, with new powers and sanctions to tackle the spectrum of non-compliance, from minor breaches to forced labour;
  • more effective use of combined resources;
  • closer working with other enforcement partners, including the police, immigration enforcement, benefit fraud, health and safety, the Pensions Regulator, and wider local authority enforcement;

It also asks whether such a body should also take on enforcement of SSP, discrimination and harassment in the workplace, and the enforcement of Employment Tribunal awards. The consultation closes on 6 October 2019.

Any time soon?

With Brexit such a big issue continuing to dominate Parliamentary time and energy until 31 October (and inevitably beyond, even if that date is adhered to), it remains to be seen whether Boris Johnson will have the appetite to push forward any of these proposals (apart from off-payroll working) which were not initiated on his watch.

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