Five Major Employment Legislation Proposals That May Progress in 2021

Many proposed employment law changes that the Government has put forward in the last few years have stalled, mainly as a result of the focus on Brexit and the coronavirus pandemic. This post considers Five Major Employment Legislation Proposals That May Progress in 2021 and what they might mean for employers.

  1. Overhauling Family-friendly Rights

    The Government has suggested a wide variety of potential changes to family-friendly rights in recent years, including an overhaul of flexible working rules, the introduction of statutory carers’ leave and neonatal leave, and changes to statutory paternity leave to encourage fathers to take more leave.

    The Queen’s Speech, delivered on 19 December 2019, included the announcement of an Employment Bill. The Bill may finally be published in 2021 and could include provisions on flexible working, carers’ leave, neonatal leave, and the extension of maternity protection on redundancy.

    What are the key proposals?

    • Make flexible working the default unless employers have “good reason” not to do so.
    • Introduce one week’s unpaid leave each year for employees who are carers, for the purpose of caring for a dependant with mental or physical health needs.
    • Introduce neonatal leave and pay to support new parents whose baby requires neonatal care following birth.
    • Overhaul family-friendly leave and pay entitlements, with a focus on changes to statutory paternity leave and pay that would encourage fathers to take more leave.

    The pandemic has radically altered the perception of flexible working among both employers and their employees. Millions of employees have become used to working remotely and employers are having to rethink their policies since flexible working is now being seen by many as the default position. While this shift is being driven by circumstances, employers can expect legislative changes in the next few years. The pandemic has made the statutory right to request flexible working, which allows employers to restrict employees to one request per year and gives employers three months to make a decision, look cumbersome and old fashioned.

    As well as remote working, employers are getting used to more employees asking for reduced hours, more flexible start and finish times, compressed hours, and a hybrid working arrangement mixing homeworking with attendance.

    The days of shared parental leave may also be numbered, so employers should look out for announcements about its abolition and any potential replacement.

  2. Pregnancy and Maternity Leave: Extending Redundancy Protection

    Employees on maternity leave already have the right to be offered any suitable alternative vacancy in a redundancy situation. However, the Government intends to extend this protection to cover the period from the employer finding out about the pregnancy to six months after the employee’s maternity leave ends.

    What are the key proposals?

    • Ensure that the redundancy protection period, which gives the right to be offered any suitable alternative vacancy in a redundancy situation, applies from the point that the employee informs the employer that she is pregnant (whether this is done orally or in writing).
    • Extend the redundancy protection period to six months after a new mother has returned to work, with the protection period starting once maternity leave is finished.
    • Mirror the extension of the redundancy protection period for those taking adoption leave and shared parental leave (but not paternity leave).

    The changes in relation to maternity leave would double the current period of redundancy protection from one year to around two years, assuming the pregnant employee advises the employer of their pregnancy at about the 12-week point and takes one year’s maternity leave. This could substantially increase the number of employees who must be given priority for any suitable alternative vacancy on redundancy, particularly in female-dominated workplaces.

  3. Addressing “One-sided Flexibility” In Working Hours

    The Government suggested that it will legislate for the right for workers to “request a more predictable and stable contract” and be provided with “reasonable and recordable” work schedules.

    What are the key proposals?

    • Provide workers with the right to request a more predictable and stable contractual working pattern after 26 weeks’ continuous service.
    • Give workers the right to “reasonable and recordable” work schedules, to tackle the issue of workers being allocated shifts with limited notice, making it difficult for them to “plan their lives or find other work”.
    • Define what counts as “reasonable notice” of work schedules, which might include a minimum amount of notice while also building in some flexibility.
    • Provide workers with compensation for shifts cancelled without reasonable notice.

    These changes would particularly affect employers that are reliant on casual and zero hours workers. Employers with this sort of flexible workforce would have to tighten up their planning for work schedules and put in place a procedure to allow workers to request a more stable contract.

    It is possible that this new “right to request” could be modelled on the right to request flexible working. This means that the employer would have at least to consider the worker’s request and assess whether or not it can grant it. A positive outcome for a worker could be that the employer provides them with a minimum number of hours per week, or guarantees them work on certain days of the week.

    There would be no obligation on the employer to provide a stable contract. Legislation would set out grounds on which it is permissible for employers to turn down a worker’s request.

  4. Strengthening Workplace Sexual Harassment Laws

    Following the #MeToo movement, the Government looked at what more could be done to ensure that employers take all the steps that they can to prevent workplace sexual harassment. although there is a clear legal position on this issue there is significant evidence to suggest that workplace sexual harassment remains widespread, suggesting employers are not taking adequate steps to prevent harassment.

    What are the key proposals?

    • Introduce a mandatory duty on employers to prevent harassment in the workplace.
    • Strengthen and clarify the law on third-party harassment in the workplace.
    • Extend the employment tribunal time limits for claims under the Equality Act 2010.
    • Introduce a statutory code of practice on sexual harassment at work.

    The Equality and Human Rights Commission are developing a new statutory code of practice on sexual harassment and is expected to consult on a draft version before it is introduced.

  5. Clarifying The Law On Settlement Agreements

    The aim is to tackle misuse of confidentiality clauses when workplace harassment or discrimination occurs, the Government stated its aim to require employers to set out more clearly the consequences and limitations of confidentiality clauses in contracts of employment and settlement agreements.

    What are the key proposals?

    • Ensure that a confidentiality clause cannot prevent an individual from making a disclosure to the police, regulated health and care professionals, or legal professionals.
    • Improve independent legal advice available to an individual when signing a settlement agreement.
    • Produce guidance on drafting requirements for confidentiality clauses.
    • Introduce new enforcement measures for confidentiality clauses that do not comply with legal requirements.

    Employers would not be prevented from making use of confidentiality clauses when an employee’s employment ends. For example, employers use them to protect commercially sensitive information and prevent employees from sharing such information with their competitors. However, employers would have to ensure that:

    • their confidentiality clauses do not prevent employees from making disclosures to the police, regulated health and care professionals and legal professionals; and
    • employees asked to agree to confidentiality clauses, whether that is at the beginning of their employment (within their contract of employment) or at the end (within a settlement agreement), are given clear advice on the consequences of doing so.

    These proposals are closely linked to the Government’s proposed reforms on sexual harassment (see 1. Strengthening workplace sexual harassment laws). It would make sense for both sets of reforms to be introduced at the same time, which would give employers a double challenge.

    However, there is nothing to prevent employers from reviewing their use of confidentiality clauses now.

Other Proposals That Could Progress In 2021

  • Introducing new rules to ensure that tips are passed to workers in full.
  • Requiring high-earning public-sector employees to repay exit payments where they return to work in the public sector within one year of leaving.
  • Extending the time required to break a period of continuous service from one week to four weeks for calculating employment rights.
  • Widening the ban on exclusivity clauses, currently banned in zero hours contracts, to include contracts where a worker’s guaranteed weekly income is less than the lower earnings limit for national insurance purposes.

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Five Major Employment Legislation Proposals That May Progress in 2021