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6th August 2019

Legal issues – Current consultations and proposed changes to employment law

Long-time readers will have seen our updates on the Taylor Review, which made a number of recommendations to the government on how to improve UK employment law to suit the modern working environment, and on the resulting Good Work Plan (GWP), which was the government’s response to the Taylor Review.

In some areas, the government has been decisive on what it intends to do to update the law. In others, it has sought further opinions by way of consultation, with many consultations in progress and due to close before the end of 2019. We have outlined some of the main issues being considered below.

Family matters

While the last major reforms to family law took place relatively recently in 2015, the government is seeking views on whether it makes more sense to have a single set of leave entitlements as opposed to the disparate rules on maternity, paternity, shared parental leave etc.

There is also a consultation open regarding neonatal leave, which would allow eligible parents up to one week’s leave and pay for every week that their baby is receiving neonatal care, with a cap on the number of weeks that can be taken.

We recently reported on developments in relation to increased redundancy protections for new mothers, and the government has confirmed its intention to increase the protected period to six months after a return to work from maternity leave. We do not yet have a date for this change.

Sexual harassment

Both a cause célèbre and an issue in the modern workplace, sexual harassment has been a predominant hot topic of the last few years, and that does not look set to stop. The government is trying to play its part by looking at our current suite of equality and harassment laws to determine whether they are fit for purpose.

Some of the questions it is currently consulting on include:

  1. Should there be a mandatory duty on employers to protect employees from harassment?
  2. Should employers be required to report on and/or publish their harassment policies?
  3. How could the laws around third party harassment be strengthened?
  4. Should the time limit for claims be extended from three months to six?

Confidentiality and non-disclosure agreements (NDAs)

This issue is tied in part to the previous one, with some employers attempting to ‘gag’ harassment victims from speaking out about their experience. As above, the government is keen to crack down on this sort of tactic being abused, and as such has confirmed its intention to tighten the rules in this area. For example, new legislation is expected to ensure that:

  1. Confidentiality clauses and NDAs cannot prevent individuals from making disclosures to the police, healthcare professionals or legal professionals.
  2. The limits of such clauses / NDAs are clearly explained, e.g. in a contract or settlement agreement.
  3. Individuals receive advice on the nature and limits of any confidentiality requirements when party to a settlement agreement, to make them aware of the facts before signing.

There is not yet an implementation date for these changes.

Health issues

The government is seeking views on developments to the law as it relates to health in the workplace, particularly to allow individuals with long-term conditions to remain in work.

Part of the consultation relates to whether a new right to request workplace changes should be introduced alongside existing rules on making reasonable adjustments. Similarly, there are proposals regarding employers being encouraged to take steps to support sick employees to come back to work.

The laws on statutory sick pay (SSP) are also being reviewed, primarily as to whether SSP should be made available to those on lower incomes, who wouldn’t be entitled under the current system. Additionally, new rules may be put in place regarding phased returns to work following sickness absence. Such arrangements are possible now, but are generally operated at the discretion of the employer.

Protecting atypical workers

A significant focus of the Taylor Review and subsequent GWP was around creating further protections for atypical workers, such as those on casual contracts. The government is aware that there is often ‘one-sided flexibility’ in such arrangements, with employers wielding the power and workers being exploited.

While a ban on zero-hour contracts was decided to be both unhelpful and disproportionate, the government has been clear that the current system has too much potential for abuse. As a result, it is currently considering a number of changes, such as:

  1. Compensation for workers whose shifts are cancelled with short or no notice.
  2. Requiring a minimum period of notice when offering shifts.
  3. Protections for workers who have to turn down shifts, to prevent them from being adversely treated for doing so.

Next steps

The issues currently under consultation will not be in force for some time, as the government will have to consider the responses before confirming its intentions, if any. Where it has taken a definitive stance already, we are likely to see those changes more quickly, but even then the legislative timetable can be lengthy.

We will of course continue to release updates as we know more. In the meantime, if you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.

6th August 2019