WHAT’S LIKELY TO BE NEW IN EMPLOYMENT LAW THIS YEAR?

The Employment Bill, originally announced in the Queen’s Speech in December 2019, has been notably absent from the government’s legislative timetable ever since, despite noises suggesting that it might make a reappearance. Instead, we can expect to see several recommendations initially outlined in the

Good Work Plan, which were originally destined for the Bill to hit the statute books courtesy of several Private Members’ bills.

Good Work Plan Recommendations

The Private Members’ Bills, outlined here, are all concerned with employment rights and, having passed through the House of

Commons, are all currently at various stages in the House of Lords: Right to flexible working: The Employment Relations (Flexible Working Bill) gives employees the right to request flexible working arrangements from day one of their employment rather than requiring 26 weeks of employment before gaining such an entitlement. They will also be able to make two requests within a 12-month period and will no longer have to explain what impact their request will have on the business. Employers must respond to such requests within two months and must consult with employees before refusing an application. The Bill seeks to make the process less administratively onerous and flexible working the default – and with more generous terms.

Unpaid carer’s leave: The Carer’s Leave Bill is designed to allow employees responsible for caring for someone with long-term care needs, one week of unpaid annual leave (in addition to their usual holiday allocation) to help them balance their caring responsibilities with work obligations. Eligible employees will be able to qualify for this leave from day one of their employment, and there will be no requirement for employees to provide evidence to their employer of how such leave entitlement is used.

Redundancy protection for pregnant women: The Pregnancy and Maternity (Redundancy Protections) Bill will give pregnant women and new parents returning to work greater protection from redundancy. Under current rules, if a redundancy situation arises during an employee’s maternity leave and “it is not practicable by reason of redundancy” for the employer to continue to employ her under her existing contract, the employee is entitled to be offered a suitable alternative vacancy where one is available, above anyone else whose role has been put at risk of redundancy.

The Bill proposes to extend this protection from when a woman tells her employer she is pregnant until 18 months after the birth.

Those returning from adoption and shared parental leave under the plans will also get an additional six months of protection from when they return to work when they start their leave.

Looking after poorly babies: Neonatal Care (Leave and Pay) Bill will entitle parents of babies receiving neonatal care (either medical or palliative for seven or more consecutive days) to take a minimum of a week’s leave up to a maximum of 12 weeks. This leave will be a day-one right and can be taken in addition to current parental statutory leave entitlements. There are eligibility criteria around the timing of such leave as well as associated rights, such as the right not to suffer detriment or discrimination as a result of taking such leave and statutory pay.

Act 2010 from the current three months to six months.

Fire and re-hire Code of Practice: The government has finally launched its promised consultation on the proposed ACAS Code of Practice, designed to regulate staff’s ‘firing and re-hiring’. The draft Code covers the steps employers must take when consulting with employees over proposed changes to their employment contracts or as part of a redundancy exercise. Dismissal and re-engagement should only be considered as a last resort when all other attempts to resolve the situation have failed. Failure to follow the process correctly could result in a 25% uplift to a tribunal award.

Preventing sexual harassment at work:

The Worker Protection (Amendment of Equality Act 2010) Bill will make employers liable for sexual harassment suffered by their staff during the course of their employment. This includes introducing a proactive duty to take “all reasonable steps to prevent sexual harassment” at work. It will also introduce specific protection for volunteers and interns and protect workers against harassment by third parties such as clients or customers. An Employment Tribunal will have the power to uplift any award by 25% if it can be proved that the duty was not complied with. Also under consideration is an extension of the time limit for bringing a claim under the Equality

Holiday Pay: Last year (2022), the Supreme Court ruled in Harpur Trust v Brazel that part-year workers (in addition to full-time workers) are entitled to 5.6 weeks paid holiday, regardless of the number of hours worked. In response, the government intends to try and restore proportionality between hours worked and statutory holiday pay. The government is suggesting that holiday entitlement should be calculated using the previous 52 weeks as a reference period (apart from new starters lacking that 52-week reference period whose holiday entitlement would be calculated at the end of each calendar month).

SUMMARY

Employment law is always in a state of flux with change perpetually coming over the horizon. With employees becoming ever more aware of their rights, employers need to understand forthcoming legislation and be prepared to adhere to and accommodate new obligations. 

TINA CHANDER

Tina Chander is a partner and head of employment law at Wright Hassall LLP.