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

Changes in December and early January:

  • Government outlines new equality and diversity strategy
  • Government launches consultation on non-compete clauses
  • Government launches review into the Human Rights Act 1998

  • Coronavirus measures

    Coronavirus Job Retention Scheme (Furlough)

    The Chancellor announced the extension of furlough up until the end of March 2021.  

    HMRC published updates to multiple guidance documents contained within its Coronavirus Job Retention Scheme collection and the Treasury issued a new direction. In January, updated employer guidance confirmed that employees are eligible for furlough: if they are unable to work, including from home or working reduced hours because they:

    • are clinically extremely vulnerable, or at the highest risk of severe illness from coronavirus and following public health guidance
    • have caring responsibilities resulting from coronavirus (COVID-19), such as caring for children who are at home as a result of school and childcare facilities closing, or caring for a vulnerable individual in their household.

    Effective now

    Employees in quarantine

    Employees returning from abroad may have to quarantine for 14 days. If they are unable to work from home, there are a number of ER management issues and legal issues around entitlement to pay.

    Read more:

    Government guidance: Coronavirus (COVID-19): travel corridors

    Government guidance: Coronavirus (COVID-19): jobs that qualify for travel exemptions

    Government guidance: Self-isolating after returning to the UK: your employment rights

    Effective now

    Gender pay gap reporting and furlough

    Ahead of reporting deadlines (30 March (most of the public sector) and 4 April (private sector and others)) new 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.

    Effective now

    Job Support Scheme – Open

    The Treasury issued a press release, factsheet and policy paper.  
    March/ April 2021, but on hold pending end of furlough

    Job Support Scheme – Closed

    March/ April 2021, but on hold pending end of furlough

    Coronavirus job retention bonus

    This was supposed to launch in February 2021 as a one-off payment scheme but was suspended and it may be replaced with an alternative ‘retention incentive’ at another time.
    Read more: CJRB Treasury Direction and HMRC guidance (check if you can claim the CJRB and eligibility examples)

    Possibly March/ April 2021

     


  • Confirmed changes

    Apprenticeships in England

    Employers in England who recruit a new apprentice in to their business will be eligible for:
    • £2,000 for each new apprentice aged under 25; and
    • £1,500 for each new apprentice hired aged 25 and over.
    The incentive payment scheme closes on 31 January 2021.
    As well as the incentive arrangements, new apprenticeship funding rules mean that all new apprentices in England must start on apprenticeship standards.
    Read more:
    Government apprenticeships guidance: incentive payments for hiring a new apprentice
    Effective now 

    Public sector exit payment cap

    The Restriction of Public Sector Exit Payments Regulations 2020 will restrict some public sector authorities from making exit payments exceeding £95,000 to an employee or office holder when leaving employment or office. Guidance includes details of how to assess payments and sets out employer and employee responsibilities and a direction sets out detail in relation to the circumstances when the secretary of state must exercise its power to relax restrictions. A local authority lawyers representation body (LLG) and a trade union representing local authority senior executives have taken the lead on pursuing a judicial review to argue that the newly in force exit pay cap is unlawful
    Effective now

    Disclosure changes in Scotland

    The length of time that many convictions need to be disclosed by most job applicants will be reduced. The reforms seek to balance the requirement for safeguards to understand a person’s recent offending behaviour with the need to allow ex-offenders to seek gainful employment.
    Read more:
    Scottish government news: criminal disclosure reforms
    Effective now

    ACAS early conciliation rules


    The period for ACAS early conciliation is changing from one month to six weeks to remove the previous optional additional 14 day extension period.
    Effective now

    Disclosure changes in England and Wales

    Changes remove the requirement for automatic disclosure of youth cautions, reprimands and warnings and remove the ‘multiple conviction’ rule that the Supreme Court ruled unlawful in early 2019.

    Read more:

    Government news: government plan new changes to criminal records disclosure regime

    Effective now

    Brexit – UK/EU Trade and Cooperation Agreement

    This agreement governs the UK-EU trading relationship from 1 January 2021.end of transition period and
    provides that employment rights are not to be reduced from current levels in a way that impacts on trade. This means that the UK will need to maintain the standards in its legislation as they stood in December 2020, when harmonised to a large extent with EU law. Future departures from these standards will result in the re-balancing mechanisms being applied. This makes it highly unlikely that we will see the 'bonfire of employment rights' which some had predicted, including sweeping changes to TUPE or removal of working time protection as these areas could well be seen to affect trade or investment.

    However, we may see some tinkering around the edges with TUPE, and the UK courts may well be asked to look again at recent CJEU decisions which have cut across UK provisions on TUPE and collective redundancy consultation. The Supreme Court is also due to consider a number of holiday pay cases this year, and has the power to depart from previous CJEU decisions.

    Commitments in the Northern Ireland protocol to equality protection may lead to continued interpretation of CJEU decisions being applied there, although not across GB.

    Immediate things to do:

    • Consider jurisdiction and choice of law clauses in employment contracts for e.g. restrictive covenants to ensure that they are enforceable should the need arise.
    • Take action to ensure European Works Councils are validly set up. If the jurisdiction for the EWC agreement was in the UK, that will need to change.
    • Consider what will happen at the end of outsourcing contracts, especially those contracts which run for a number of years, and whether any changes to TUPE could provide a benefit or conversely a detriment to the position on exit. Suppliers may wish to build contractual protections around exit arrangements into the contract to ensure certainty.
    • Keep your holiday pay policy under review in the event that future legal changes are forthcoming.

    Read more: Pinsent Masons resources hub on Brexit

    Effective now

    Immigration in 2021

    Find out more about how immigration law in the UK will change in 2021.
    Effective now

    Statutory payment annual increases

    The Department for Work and Pensions (DWP) has proposed the following increases:

    • statutory sick pay - £96.35 (currently £95.85)
    • statutory maternity pay - £151.97 (currently £151.20)
    • statutory paternity pay - £151.97 (currently £151.20)
    • statutory shared parental pay - £151.97 (currently £151.20)
    • statutory adoption pay - £151.97 (currently £151.20)

    4 April 2021

    Off-payroll working in the private sector

    Where an individual contracts through a personal service company, the liability for making the employment status assessment and applying PAYE will no longer rest with the PSC but will shift up the chain to the end user or the agency or other intermediary, if there is one.
    Read more:
    HMRC: prepare for IR35 changes despite Covid-19 challenges
    6 April 2021

    EU Work-life Balance for Parents and Carers Directive

    The EU adopted a Directive on work-life balance for parents and carers. It includes a right to four months of parental leave, from which two months are non-transferable between the parents. It also introduces five days carers' leave. Brexit may impact on implementation in the UK.
    August 2022

    EU Written Statement of Particulars Directive

    The EU adopted a new Directive to create more transparent and predictable working conditions, in particular for workers in non-standard forms of employment. Brexit may impact on implementation in the UK.
    August 2022

    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

    Disclosure changes in England and Wales

    The Ministry of Justice has also 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.

    Read more:

    Government press release: criminal record reform to support ex-offenders into 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.
    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.
    Read more:
    European Council adopts EU-wide whistleblower protection rules
    Not expected to be implemented in the UK (although UK employers with business in more than one EU jurisdiction may well need to meet the terms of the Directive).

  • Proposals, consultations and inquiries

    National living wage increases

    In March 2020, the government committed to the national living wage reaching two-thirds of median earnings and be extended to workers aged 23 and over by April 2021, and to those aged 21 and over by 2024. In the Chancellor’s November 2020 Spending Review, he confirmed that there will be increases to the national living wage and the national minimum wage in April 2021. The Low Pay Commission had been monitoring whether an “emergency brake” on planned increases would be needed due to economic uncertainty created by COVID-19. However, the following increases  will be effective from April 2021:

    • national living wage will apply to individuals aged 23 and over and will rise from £8.72 to £8.91;

    • national minimum wage changes include: age 21 to 22 rate increases from £8.20 to £8.36/ age 18 to 20 rate increases from £6.45 to £6.56/ age 16 to 17 rate increases from £4.55 to £4.62/ apprentice rate increases from £4.15 to £4.30.

    April 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

    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, 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, although the March 2020 budget announced that there would be a consultation on carers’ leave which is awaited;
    • subject to consultation, 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.
    Read more:
    Good Work Plan: establishing a new single enforcement body for employment rights
    Good Work Plan: consultation on measures to address one-sided flexibility
    Government response - Good Work Plan: pregnancy and maternity discrimination consultation
    Government response - Good Work Plan: proposals to support families (neonatal leave and pay)
    2021

    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

    '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. There has been no government response.
    2021

    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

    Non-compete clause consultation

    The government has launched a consultation on whether non-compete clauses should be unenforceable or enforceable only when compensation is provided during the term of the clause. Consultation closes on 26 February 2021.
    2021

    Human rights reviews

    The government has 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 does an employee have 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

    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 there is no current policy proposal.
    2021

    Ethnicity pay gap reporting

    The government consulted on ethnicity pay gap reporting in 2019 and a response is awaited. A petition calling for such reporting reached 100,000 signatures in June 2020 and is now eligible for a Parliamentary debate. 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.
    2021

    Sexual harassment in the workplace

    The government's 2019 consultation asked:
    • whether there should be a specific duty for employers to prevent harassment, and what more could be done to ensure that employers do take all reasonable steps to prevent harassment, including consideration of whether transparency on figures is desirable;
    • whether the current regime provides protection from harassment by third parties; and whether more is required in terms of protecting interns and volunteers.
    • whether the three-month time limit for bringing harassment claims before an ET should be extended.
    Although a response is awaited, in January 2020 the government took forward its pledge to commission a survey to gather data on the prevalence of sexual harassment.
    Read more:
    Government news: sexual harassment victims to "have their say" on laws designed to protect them
    Gender equality at every stage: roadmap for change
     2021

    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

    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

    Social value and awarding government contracts

    The government consulted in 2019 on a proposed model to take account of social value in the award of central government contracts. From an employment perspective, the policy outcomes that may be considered, and which will determine award criteria, include measuring diversity in supply chains; improving employability and skills; and encouraging improved: gender pay balance, representation of disabled/ ethnic minority employees, and staff mental health/ wellbeing. The government responded in September 2020 and will proceed with the new social value model making training and support available.
    2021

    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

    Overhaul of whistleblowing legislation

    An All Party Parliamentary Group (APPG) on whistleblowing 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

    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 on 29 January 2021, private member's bills often do not make it through Parliament. During PMQs on 16 December, the Prime Minister refused to support proposals for such legislation.
    TBC

  • Cases pending

    Whether Uber drivers are workers or self employed Uber BV v Aslam & ors

    The Court of Appeal held that Uber drivers were workers
    Appeal to the Supreme Court heard on 22 and 23 July 2020
    January 2021

    Retail equal pay comparators Asda Stores v Brierley

    The Court of Appeal decided that women working in Asda stores can compare themselves for the purposes of equal pay claims, with men working in the distribution centres.
    Appeal to the Supreme Court heard on 14–15 July 2020.
    January 2021

    Sleep in shifts and the NMW Royal Mencap v Tomlinson-Blake and Shannon v Rampersad

    The conjoined Court of Appeal cases held that "the only time that counts for NMW purposes is time when the worker is required to be awake for the purposes of working". This reversed earlier judgements that sleep in shifts did attract the NMW.
    Appeal to the Supreme Court heard on 12-13 February 2020.
    February 2021

    Holiday pay Smith v Pimlico Plumbers

    The EAT is considering a range of questions in relation to holiday pay including carry over of leave, historic liability for holiday pay and the impact of Brexit. Appeal to the EAT heard December 2020.
    February 2021

    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 to be heard on 18 May 2021.
    November 2021

    Voluntary overtime and holiday pay calculations Flowers and others v East of England Ambulance Trust

    The Court of Appeal held that voluntary overtime should be included in holiday pay calculations.
    Appeal to the Supreme Court to be heard on 22 June 2021
    December 2021

    Backdated holiday pay claims Chief Constable of the Police Service of Northern Ireland v Agnew

    The Court of Appeal (Northern Ireland) decided that a gap of more than three months in a 'series of unlawful deductions' from holiday pay did not break the series of deductions.
    Appeal to the Supreme Court heard on 23-24 June 2021.
    December 2021

    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.
    2022