Out-Law / Your Daily Need-To-Know

What to watch out for in the coming weeks in UK employment law.

Changes in August/September

  • Consultation on mandatory vaccination for frontline health and care staff in England
  • Mandatory vaccinations for care home staff in England
  • EHRC publishes draft strategic plan for consultation
  • ICO opens consultation before updating guidance on employment practices
  • UK right to work check concessions extended until April 2022
  • Recognition of gender change in Scotland
     
  • Coronavirus measures

    Consultation on mandatory vaccination for frontline health and care staff in England

    The government is consulting on whether or not to extend vaccination requirements in England to frontline workers in health and care settings for COVID-19 and also for flu.

     

    Consultation closes on 22 October 2021
     

    Mandatory vaccinations for care home staff in England

    The UK government confirmed it will require people working in regulated care homes in England to have been vaccinated against Covid-19. The government’s explanatory memo to the regulations sets out the rationale behind the implementation of these changes, together with a summary of scientific evidence they have relied on. 
    Even with the weight of the regulations behind them, employers will have to undertake a thoughtful approach to implementing this issue in their workplace. Of the very limited exemptions, those which would appear to apply to staff are essentially:
    people under 18 or with a clinical reason for not having the vaccine; or
    those providing emergency assistance or urgent maintenance.

     

     11 November 2021

    Coronavirus Job Retention Scheme (Furlough)

    Furlough ends on 30 September 2021. Employees will continue to receive 80% of their current salary for hours not worked. The current scheme is set out in to multiple guidance documents contained within HMRC's Coronavirus Job Retention Scheme collection, and the Treasury has issued a seventh Treasury Direction in respect of the period 1 May to 30 September 2021.

     

    Effective now

    Gender pay gap reporting and furlough

    Enforcement action against employers failing to report their gender pay gap will start again on 5 October 2021. However, the EHRC as been encouraging employers to report their gender pay gap data for 2020/21 on time if they could. Government Equalities Office information on the Gender Pay Gap confirms how periods of furlough will be addressed. See the section on when to exclude full-pay relevant employees in the note on data which must be gathered.

     

    Enforcement from 5 October 2021

    Right to work checks during the COVID-19 pandemic

    The adjusted right to work checks introduced by the Home Office during the COVID-19 pandemic were due to come to an end on 31 August 2021 but this deadline has been extended again. The temporary COVID-19 adjusted right to work checks will now end on 5 April 2022. The Home Office is also planning for a system of digital right to work checks in the future but with enhanced security. New guidance will be issued ahead of 6 April 2022.

    5 April 2022

  • Confirmed changes

    Immigration in 2021

    Find out more about how immigration law in the UK has changed in 2021.

    Effective now

    Trade union regulator to be modernised

    BEIS announced plans to implement the remaining parts of the Trade Union Act 2016 which give the Certification Officer additional powers. Included in the plans are powers for the Certification Officer to:

    • respond to third party concerns that a TU may have breached its statutory duties. This means that employers (not just TU members) could ‘report’ a TU to the regulator, in certain specific circumstances
    • initiate their own investigation if a breach is suspected
    • apply financial penalties to TUs of up to £20,000 where the most serious breaches occur

    The Certification Officer will also be funded by a levy on the organisations it oversees (capped at 2.5% of a TU’s annual income although smaller organisations will be exempt).

    April 2022

    New single enforcement body for employment rights

    BEIS confirmed that it will go ahead with its proposal for a new single enforcement body with a remit to tackle modern slavery, enforce the minimum wage and protect agency workers. The new body will be a “one stop shop” that will replace the Gangmasters and Labour Abuse Authority, the Employment Agency Standards Inspectorate and HMRC’s National Minimum Wage Enforcement. The new body will also have a new ability to ensure vulnerable workers get their holiday pay and statutory sick pay without having to go through an employment tribunal process. The creation of this new body will most likely need to await the Employment Bill (see below). Read more: UK creates workers’ watchdog to protect and enforce rights

    2022/ 2023

    Scottish disclosure – regime overhaul

    Changes to disclosure legislation include replacing the four existing levels of disclosure and the 10 different associated products with two main 'levels'. Criminal offences are also created for individuals who carry out or attempt to carry out a “regulated role” without being a PVG Scheme member. A parallel offence is in place for any organisation that offers a 'regulated role' to an individual without first establishing that they are a PVG Scheme member by carrying out a Level 2 search. The regulated role is a new concept which replaces 'regulated work'.

    TBC

    Enterprise Act 2016 - changes to shop workers' rights

    Schedule 5 of the Enterprise Act 2016 will amend the Employment Rights Act 1996 (ERA), and will strengthen shop workers rights in relation to Sunday working.

    Potentially 2022

  • Proposals, consultations and inquiries

    Menopause and work – call for evidence

    The Women and Equalities Committee in the UK Parliament has opened a call for evidence on Menopause and the workplace, citing statistics from the CIPD that “three in five menopausal women - usually aged between 45 and 55 - were negatively affected at work and that almost 900,000 women in the U.K. left their jobs over an undefined period of time because of menopausal symptoms”.
    Questions which will particularly resonate with employers include:
    How can businesses factor in the needs of employees going through the menopause?
    How can practices addressing workplace discrimination relating to menopause be implemented? For example, through guidance, advice, adjustments, or enforcement.
    What are examples of best or most inclusive practices?
    How should people who experience the menopause but do not identify as women be supported in relation to menopause and the workplace?
    How well does current legislation protect women from discrimination in the workplace associated with the menopause?

    Calls for evidence closed on Friday 17 September 2021.

    ICO call for views on employment practices

    The ICO is planning to replace existing guidance on data protection and employment practices and has opened a consultation to invite input.

    Consultation closes 21 October 2021

    Equality and diversity

    In December 2020, Liz Truss, Minister for Women & Equalities set out a new equality strategy with a move towards a focus on social mobility. The impact of this initial strategy statement will become clearer as the government further develops its position and businesses and interest groups consider and make public their response.

    2021

    Recognition of gender change in Scotland

    The Scottish government has consulted on legislation has been proposed which proposes to change the route to recognition of gender change in Scotland. Proposed changes include removal of current medical requirements when applicants are seeking legal gender recognition, and reducing the period that applicants must have lived in their acquired gender to a minimum of three3 months (rather than the current two2 years) before submitting an application for gender recognition. . In its September 2021 Programme for Government the Scottish government confirmed it would introduce the Gender Recognition Reform Bill to the Scottish Parliament.

    Legislation before Scottish Parliament 2021/ 2022

    Employment Bill

    In the Queen's speech in December 2019 the government announced its intention to bring forward an Employment Bill containing the following provisions:

    • creating a new single enforcement body for employment rights (see above);

    • offering greater protections for workers (following the 2019 Good Work Plan consultation on a single enforcement body which encompasses tribunal/ court practice and procedure; NMW, sick pay; health & safety, although the government is yet to formally respond);

    • ensuring that tips left for workers go to them in full;

    • introducing a new right for all workers to request a more predictable contract. This follows the 2019 Good Work Plan consultation on one-sided flexibility in the gig economy which encompassed reasonable notice of work schedules and compensation for cancelled shifts, although the government is yet to formally respond;

    • extending redundancy protections to prevent pregnancy and maternity discrimination so that women have a preferential right to any suitable available vacancy while pregnant or on maternity leave and for six months on their return. There will be new adoption leave and shared parental leave redundancy protections too. This follows the government's response to the 2019 Good Work Plan consultation on pregnancy and maternity discrimination; 

    • allowing parents 12 weeks neonatal pay and leave. This follows the government's partial response to the 2019 Good Work Plan consultation on proposals to support families; 

    • introducing an entitlement to one weeks leave for unpaid carers;

    • subject to consultation expected this year, the Bill will make flexible working the default unless employers have good reason not to.

    There are also general references to the following objectives although no detail is provided:

    • protecting and enhancing workers’ rights as the UK leaves the EU; and

    • building on existing employment law with measures that protect those in low-paid work and the gig economy.

    It was reported in February 2021 that the Bill would be delayed until at least the end of 2021. There was only a vague reference in the May 2021 Queen’s Speech to proposals that “will be brought forward to create and support jobs and improve regulation” but no specific mention of the Employment Bill. In May 2021 BEIS wrote to Parliamentary Committees that the Employment Bill “will be introduced when the time is right, not while the pandemic is ongoing and continuing to affect the economy and the labour market in sometimes unpredictable ways”

    End 2021 (unlikely)/ 2022

    Flexible working

    As employers work through proposals for hybrid working arrangements, both employers and employees are seeking to build in flexibility to new arrangements. There are proposals in the Employment Bill to make flexible working the default unless employers have a good reason for this not to apply, but we don’t know what that will look like yet. The government restarted the Flexible Working Taskforce in February 2021. The Taskforce brings together business, organisations such as the CIPD and government to consider the issues and make proposals. Consultation is expected this year.

    2021 for consultation

    Carers’ Leave

    The government consulted on its proposal for a new right which would allow qualifying employees to take a week of unpaid leave each year to provide care. The response is awaited , but the National Disability Strategy . notes that “BEIS will set out next steps in progressing the government’s commitment to introduce unpaid carers’ leave across Great Britain by the end of 2021”.

    2021 for consultation response

    Good Work Plan: protecting continuous service

    The government agreed in the 2018 Good Work Plan to legislate to increase the break in employment needed to break continuity of employment from one week to four weeks, allowing more employees to gain access to employment rights. In June 2021 BEIS restated this commitment. It is likely to appear in the Employment Bill.

    End 2021 (unlikely)/ 2022

    Good Work Plan: proposals to support families

    The government has partially responded to 2019 three chapter consultation on:

    • reforming parental leave to achieve greater balance (no formal response),

    • entitlements for parents of babies requiring neo-natal care (response given), and

    • transparency relating to flexible working hours and family-related pay & leave (no formal response).

    Aspects of these will be introduced in the Employment Bill (see above).

    2021 for consultation response

    'Health is everyone’s business'

    A 2019 government consultation aimed at making it easier for disabled people to stay in work and find work; and consulted on proposals to reduce ill health-related job loss. New statutory guidance is likely, and SSP may change to make phased returns easier. The consultation response feeds off and into the new Disability Equality Strategy (see below) and covers a wide range of issues including: 

    • better information and resources for employers
    • no right to request workplace modifications but raising awareness around reasonable adjustments. 
    • transforming the DWP’s Access to Work scheme.
    • strengthening guidance on supporting disabled people and those with long-term health conditions; 
    • considering changes to SSP
    • innovating and improving occupational health services, particularly for SMEs;
    • enabling better use of the fit note system and consulting with employers
       

    References

    The government has committed to consulting on a new legal obligation for employers to provide basic references for all employees to avoid the threat of no reference being used to force a settlement.
    2021 for consultation

    Non-compete clause consultation

    The government consulted on whether non-compete clauses should be unenforceable or enforceable only when compensation is provided during the term of the clause. Consultation closed on 26 February 2021.
    2021 for consultation response

    Exclusivity clauses in contracts of employment consultation

    The government consulted on a proposal to extend the ban on exclusivity clauses beyond zero hours contracts, to contracts where the workers’ guaranteed weekly income is less than the Lower Earnings Limit, currently £120 a week. Consultation closed on 26 February 2021.
    2021 for consultation response

    Human rights reviews

    The government launched a review which will consider how the Human Rights Act 1998 is working in practice and whether any change is needed. The Parliamentary Joint Committee on Human Rights has also launched an inquiry into freedom of expression. It is wide ranging but will consider what “obligations an employee has to their employer when expressing views on social media, and to what extent can, and should, employers respond to what their employees say on these platforms?”
    2021 for review/ inquiry outcome

    Disability employment gap

    The Parliamentary Work and Pensions Committee launched an inquiry into the disability employment gap. Disability pay gap reporting may attract greater attention but in May 2021 the government said that it rejects proposals for disability pay gap reporting favouring a voluntary reporting framework.

    The government’s new Disability Equality Strategy sets out several employment-focussed initiatives including: 

    • Improving .access to work;
    • A review of the Disability Confident scheme; and a consultation on disability workforce reporting;
    • Making it easier for disabled people to work flexibly by making flexible working the default position;
    • Introducing unpaid carers’ leave; and  
      Creating civil service opportunities for disabled people. 
    • ACAS also launched a new Disability at Work Hub as set out in the strategy.


    Consultation in 2021.

    Ethnicity pay gap reporting

    The government consulted on ethnicity pay gap reporting in 2019 and a response is awaited. This is not the same issue as reporting on Gender Pay Gaps. It throws up particular problems, for example, what is monitored in terms of categorisation of ethnicity. In May 2021 the government noted that it is is still considering its response which will be published “in due course” as it is encountering “genuine difficulties in designing a methodology that will produce accurate figures that facilitate analysis, interpretation and meaningful action”.

    2021 for consultation response

    Sexual harassment in the workplace

    Government responds to consultation
    The UK government published its response to its Consultation on Sexual Harassment in the Workplace, which closed in October 2019. The response confirms that the government will introduce a positive duty on employers to prevent sexual harassment, something favoured by the majority of respondents. Explicit protections from third party harassment will be brought in, and the government will also look at whether ET time limits should be extended from three to six months, something again that most consultation responses supported. Protections will not be extended to volunteers and interns. 
    The new positive duty to prevent harassment (which the government anticipates will incentivise employers to focus on preventing harassment) is likely to follow the model set out in the consultation, with “employers required to take ‘all reasonable steps’ to prevent harassment, and for an incident to have taken place before an individual can make a claim”. A statutory code of practice will be developed by EHRC which will be accompanied by guidance for employers. 
    Protections from third party harassment will be brought in when parliamentary time allows. No decision has yet been made on whether protection will kick in in circumstances where no incident has occurred, or only where a report of harassment has already been made. Reading between the lines, it does look as if the previous test (where protection only kicked in on the third incident occurring) will not be the way forward. Employers will have a defence that they have taken all reasonable steps to prevent third party harassment. 
    Finally, on volunteers and interns, the response recognises the “power dynamics” which can come in to play in these work relationships, but the government considers that interns, even those who are unpaid, are likely to be classed as workers within the definition of the Equality Act and are therefore protected. The government doesn’t intend to extend any protection to volunteers but expects responsible employers to ensure they have an effective anti-harassment policy which covers all staff.

    Potentially late 2021 for Code of Practice. 
    Estimated 2022 for other issues.

     

     

    Consultation on confidentiality clauses (NDAs)

    The government's 2019 consultation asked a range of questions in relation to the use of employee confidentiality clauses. The consultation sought responses on any NDA clause in an employment context, regardless of whether it is in a settlement agreement, contract of employment or elsewhere. It covered a variety of matters including:

    • whether disclosures to the police and other, as yet unspecified, organisations should always be permitted;

    • how to ensure clarity for workers as to the limits of confidentiality clauses;

    • appropriate enforcement of any limits set.

    The government's 2019 response confirms that NDAs are not to be used to prevent disclosures to policy, healthcare and legal professionals. Transparency on the extent/ effectiveness of such clauses will also be required. Draft legislation is awaited.
    2021/ 2022 for draft legislation

    Domestic abuse and workplace support

    In 2020 the government issued a call for evidence on how employers can support survivors of domestic abuse at work. Questions included what practical circumstances arise in relation to domestic abuse/ work and what workplace support can be offered? A response is awaited.
    2021 for consultation response

    Good Work Plan

    The government committed to take "forward virtually all the recommendations" in the 2017 Taylor Review on modern employment practices in its 2018 Good Work Plan. Many of the proposals have been implemented or have been signaled for inclusion in the Employment Bill (see above). Outstanding proposals include:

    • extending the time required to break a period of continuous service - from one week to four weeks; and

    • aligning the employment status frameworks for the purposes of employment rights and tax.

    2022

    EU Pay Transparency Directive

    In March 2021 the EU proposed a Directive aimed at ensuring that the right to equal pay is upheld across the EU. It would establish pay transparency standards to make it easier for workers to claim their right to equal pay. If adopted Member States would have two years to implement it in national law.

    2024. Would not be implemented in the UK (although UK employers with sectoral compliance issues and/or business in more than one EU jurisdiction may well need to meet the terms of any Directive)

    Disclosure changes in England and Wales

    The Ministry of Justice announced forthcoming changes to the time it takes for certain convictions to become spent. Many periods will be reduced so that they are no longer automatically disclosed on employment checks.
    TBC

    Overhaul of whistleblowing legislation

    BEIS has confirmed its intention to review the whistleblowing framework once there has been “sufficient time to build the necessary evidence of the impact of the most recent reforms”. All Party Parliamentary Group (APPG) on whistleblowing previously set out 10 recommendations for change, including focusing the legal definition of whistleblowing on the harm, or risk of harm, to the public. The APPG said a mandatory internal and external reporting mechanism should be implemented, and recommended the establishment of an Independent Office for the Whistleblower as a regulatory body.
    TBC

    EU Whistleblowing Directive

    The EU adopted a Directive to protect whistleblowers who report breaches of EU law in a variety of areas including public procurement, financial services, money laundering, product and transport safety, nuclear safety, public health, and consumer and data protection. It does not appear that the government intends to transpose the directive into UK law and it abstained from voting on the Directive. The UK already has significant protections in place, although the All Party Parliamentary Group on Whistleblowing thinks the UK needs to do more. More detail of the requirements of the Directive are set out in this Out-Law article.
    Not expected to be implemented in the UK (although UK employers with business in EU jurisdictions will need to meet the terms of the Directive).

    Dismissal and re-employment

    This private member's bill seeks to prohibit employers from dismissing and re-engaging employees "for the purpose of diminishing the terms and conditions of employment". Although it is scheduled for a second reading (date to be announced), private member's bills often do not make it through Parliament. However, BEIS engaged ACAS to investigate how fire and rehire has been used and ACAS reported to the government during February 2021. The report was published in June 2021. ACAS also plans to “produce further guidance that encourages good workplace practices when negotiating changes to staff contracts”. In June 2021 BEIS confirmed that it does not believe “heavy-handed legislation” will be needed.

    However, the Scottish Government is developing new Fair Work First criteria which will outline opposition to fire and rehire processes in the context of public procurement. The reference to “clear opposition to fire and rehire practice” is in the press release, rather than in the current guidance, but updated guidance is expected. There is no indication that the UK government plans to alter procurement criteria.

    The Bill failed to complete its passage through Parliament and will make no further progress.   New Scottish Fair Work First criteria expected September 2021

  • Cases pending

    Whether making offers directly to union members is an unlawful inducement Dunkley v Kostal

    The Court of Appeal decided that offers made direct to employees were not unlawful inducements to move away from collective bargaining.
    Appeal to the Supreme Court heard on 18 May 2021. Read more: Landmark collective bargaining case heard by Supreme Court
    Decision awaited

    Holiday entitlement for term-time/ part-year workers Brazel v The Harpur Trust

    A decision from the Court of Appeal, which the court itself described as "surprising", gave some term-time or part-year workers a favourable position.
    Permission to appeal to Supreme Court granted – awaiting hearing date.

    Hearing: 9 November 2021

    Holiday Pay claims back to the Court of Appeal - Mr G Smith v Pimlico Plumbers Ltd

    Caspar Glyn QC tweeted the issues to be addressed by the CA are:
    “1. The true ambit of Sash and the other principles of law as to carry over / exercise of paid annual leave.
    2. Effectiveness and equivalence for workers shut out by of paid leave by the need to bring any claim for pay within 3 months of any leave.
    3. Reasonable practicability as to limitation. 
    4. Series of deductions are coming home - now that Agnew is not in town anymore will Bear Scotland survive the CA

     7/8 December 2021