So much to do and so little time

Dentons

Parliament will have a busy few months ahead. However, to the extent parliamentary time allows, Theresa May’s administration has left the current government plenty of areas for change to pursue. Those keeping an eye on our employment law blog will have seen our posts on the recent consultations. Below is a consolidated round-up of what is, or may be, on the horizon … at some point soon.

Good Work Plan: proposals to address one-sided flexibility and proposals for families

Background

In July 2017, the Taylor review identified that some employers have been abusing employee flexibility and transferring excessive amounts of risk to employees with no corresponding benefits. Such workers have to sustain unpredictable hours, a lack of income security and often feel exposed and unable to assert their basic employment rights. The Taylor review recommended a higher minimum wage rate for non-guaranteed hours, or hours not agreed at least one week in advance, as a way of addressing the issue. Having taken account of the Low Pay Commission’s recommendation, the government has decided not to take the National Minimum Wage proposal forward. However, it has committed to introduce rights for workers to request a more predictable pattern of work and stable contract after 26 weeks’ service.

Consultation in a nutshell

The consultation explores the proposal that workers would have new rights to be given reasonable notice of their working hours and compensation where shifts are cancelled or curtailed without reasonable notice. Points for consultation include:

  • what amounts to reasonable notice;
  • should there be a baseline notice requirement introduced, which employers could enhance;
  • what working hours are in scope and how would reasonable notice be recorded;
  • the level of competition to deter poor practice;
  • the cut-off dates for compensation to be payable;
  • whether this should only apply if individuals are being paid rates which are at, or close to, National Minimum Wage;
  • should these be “day-one” rights; and
  • should there be variances or exceptions for different industries.

It is clear that the government wants to facilitate employers sharing best practice.

Key dates: consultation closes 11 October 2019.

Proposals for families

These proposals also arise from the Taylor review and the government’s stated aims to further rights and flexibility for working families. The proposals consist of three consultations. They explore family-related leave and pay (particularly reforming parental leave and pay), introducing statutory leave for parents of babies who go into neonatal care, and greater transparency around flexible working and parental leave and pay.

Consultation in a nutshell

Points for consultation include:

  • options for reforming existing entitlements which could help parents to balance the gender division of parental leave;
  • proposals for new leave and pay entitlement for parents of babies that require neonatal care;
  • a potential duty to consider if a job can be done flexibly; and
  • options for large employers (with more than 250 employees) to publish their family-related leave and pay, and flexible working policies.

Key dates: consultation closes Chapter 1 (parental leave and pay) – 29 November 2019.

Chapter 2 (neonatal leave and pay) and Chapter 3 (transparency) – 11 October 2019.

Government response on consultation on extending redundancy protection for women and new parents

Background

Under existing legislation, before making a woman on maternity leave redundant, an employer must offer her a suitable alternative vacancy where one is available within the employer’s group. It is recognised that this may not go far enough to protect those individuals. As long ago as 2016, BEIS published some research that demonstrated pregnancy and maternity discrimination is still far too prevalent in the workplace. There have been calls since this time, including from the Women and Equalities Committee, to make changes. The government ran consultation from 25 January 2019 to
5 April 2019 which focused on:

  • whether redundancy protection should be extended into the period when women return to work;
  • whether similar protection should be given to other groups who take adoption leave, shared parental leave, or other extended periods of leave; and
  • whether there is more the government could do to tackle the issue by increasing employer awareness.

In a nutshell

The government proposes to:

  • extend the redundancy protection period for six months once a new mother has returned to work;
  • afford equivalent protection to individuals taking adoption leave; and
  • extend redundancy protection for those returning from shared parental leave, but recognise in designing the new protection that these rights operate slightly differently than the above rights.

The government is clear that the protections are aimed at those returning to work after a prolonged period of absence, so paternity leave will not justify equal treatment to maternity leave when contemplating redundancy protection.

Key dates: proposals to be implemented when parliamentary time allows.

Government response on consultation on the use of non-disclosure agreements/confidentiality clauses in the workplace

Background

Following publication of this consultation, on 11 June 2019, the Women and Equalities Committee produced its recommendations on use of confidentiality clauses in situations of harassment and discrimination. On 25 July 2019, the Women and Equalities Committee published a further report on workplace sexual harassment (see below) which included recommendations that new legislation be introduced governing the use of confidentiality clauses. A full response to that report is expected to follow. However, the government’s response to the consultation published in July 2019 goes some way to addressing the points raised.

In a nutshell

The government proposes:

  • to introduce new legislation to prevent individuals being barred by confidentiality clauses from making disclosures to police, regulated health and care professionals, or legal professionals;
  • new obligations to ensure that confidentiality clauses which go into settlement agreements are clear to the individuals who are entering into them (there will be mandatory legal advice on a settlement agreement);
  • new guidance which will be produced by the Equality and Human Rights Commission (EHRC), Solicitors Regulation Authority and Acas to clarify the law and good practice; and
  • to make non-conforming confidentiality provisions void.

The government has decided not to introduce standard confidentiality wording, or any reporting duty.

Key dates: proposals to be implemented when parliamentary time allows.

Government consultation on sexual harassment

Background

In July 2019 (following the 2017 #MeToo movement), the Women and Equalities Committee published a report on sexual harassment in the workplace. That report called on government, regulators and employers to take a more proactive role regarding sexual harassment and called for changes in the law in some areas. The government responded to that report in December 2018. In its response the government set out 12 action points, including a commitment to consult on key points outlined below.

On 3 July 2019, the government also launched a gender equality roadmap outlining its aims that everyone can balance caring responsibilities and a rewarding career. That document focused on eight key drivers of inequality and gave a government commitment to act on those issues. One of those eight issues was ensuring that we sustain strong foundations for the future. This included reference to a consultation to help ensure that sexual harassment legislation is fit for purpose.

The government is of the view that the fact that there is a clear issue means that employers need to do more. It is applying a mix of change in legislation and the issue of guidance to try to engineer those changes. We are anticipating a new statutory code of practice and technical guidance from the EHRC, which was a commitment in the government’s December 2018 response.

In a nutshell

The consultation is in two parts – one part is a simple question format directed at individuals who have suffered harassment, and the second is a “technical consultation” with more of a focus on the legal position and how it may be reformed.

The consultation explores:

  • a new mandatory duty on employers to protect workers from harassment. The government has been clear that it will only introduce this if there is “compelling evidence” that this will be effective;
  • external reporting on prevention and resolution policies and board buy-in through the sign-off of those policies;
  • re-introduction of legislative protections in respect of third party harassment and whether the “reasonable steps” defence, which employers rely on in respect of their duties under the Equality Act 2010, should apply in the same way in respect of third party harassment;
  • new and additional protections for interns and volunteers;
  • whether the three-month time period to file harassment and discrimination claims should be extended to six months or another period; and
  • enforcement powers of the EHRC.

Key dates: consultation closes 2 October 2019.

In addition …

There is also a cross-party parliamentary group recommending an overhaul of the UK’s whistleblowing regime. The group, referring to itself as the All Party Parliamentary Group for Whistleblowing (APPGW) which launched in July, has the aim of putting whistleblowers at the top of the agenda and proposes “world class gold standard legislation that protects whistleblowers”. In its first report (The Personal Cost of Doing the Right Thing and the Cost to Society of Ignoring It) the APPGW looks at the experience, concerns and proposals of whistleblowers. In producing its 10-point plan the APPGW says that many whistleblowers cannot understand the current framework or afford to pursue claims under it. Recommendations include expanding whistleblowing protection to all members of the public and an urgent review of barriers to justice for whistleblowers. Whilst approaching the issue from a different angle, some of the APPGW’s recommendations accord with the Women and Equalities Committee findings on discrimination and harassment, with the APPGW recognising that 28.4% of the individuals who responded to its survey said that they had blown the whistle about bullying and harassment.

Comment

The general theme we can draw from the above is that the government has identified that certain categories of casual worker, women and working families require further protection than they are currently afforded. In due course we can expect to see legislative changes and best practice guidance issued to engineer those changes. The Women and Equalities Committee has been making its voice heard on several of the key issues. However, the open consultations allow an opportunity for individuals and businesses to have their own say on what is desirable and workable.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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