Employment law changes that may progress in 2021

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Employment law changes that may progress in 2021

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The year 2020 was a challenging one, to say the least, with Brexit and the coronavirus pandemic, many proposed employment law changes were delayed but as we start to see light at the end of the tunnel, it’s time to look at which proposals might be included in the Employment Bill 2021 and what employers can do to prepare for these changes.

1. Extension to redundancy protections to prevent pregnancy/maternity discrimination

Employees on maternity leave already have the right to be offered any suitable alternative vacancy in a redundancy situation.

The government intend to extend this protection to cover the period from the employer being informed about the pregnancy to six months after the employee’s maternity leave ends. This right will also apply to adoption leave and shared parental leave.

Employer checklist:

  • update redundancy policies and procedures to ensure that those on maternity, adoption or shared parental leave are to be offered any suitable alternative vacancy in a redundancy situation
  • ensure that managers carrying out a redundancy process take into account the extended redundancy protection period.

2. Flexible working to be the default unless the employer has good reason not to

The pandemic has seen millions of employees working from home and employers with preconceived ideas about flexible working have been pleasantly surprised at the relative success of homeworking arrangements.

It is expected that flexible working as the default will be put into legislation in the next few years with the idea that employers will have to “opt-out” if a job cannot be done flexibly.

Employer checklist:

  • update flexible working policies and procedures to include hybrid working arrangements, flexible start and finish times, compressed hours, etc.

3. Family-friendly rights

The government have raised a wide variety of possible changes to family-friendly rights which may be published in the 2021 employment bill, including:

  • flexible working to be the default unless the employer has good reason not to
  • one weeks’ unpaid leave for employees who are carers (for the purpose of caring for a dependent with mental or physical needs)
  • neonatal leave and pay for new parents. Parents will be entitled to this from day one of their employment and up to a maximum of 12 weeks
  • changes to statutory paternity leave and pay to encourage fathers to take more leave.

Employer checklist:

  • update flexible working policies and procedures to include hybrid working arrangements, flexible start and finish times, compressed hours, etc
  • incorporate any new types of leave into the company’s family-friendly policies and procedures.

4. A new single enforcement body for employment rights

The government has committed to establishing a single enforcement body for minimum wage, unpaid tribunal awards and the tribunal penalty scheme, regulating statutory sick pay and publicising employment rights.

5. The right for all workers to request a more ‘predictable’ contract

This right will apply to all workers who have 26 weeks’ continuous service and is intended to benefit workers who have irregular hours, for example, those under a zero-hours contract, but who would like more certainty on the number of hours they work and/or the days on which they work.

The right will define what counts as ‘reasonable’ notice of work rotas and provide compensation to workers for shifts cancelled without reasonable notice. The procedure to request a more predictable contract may model that of a flexible working request. Employers will have three months to make their decision on any such request.

Employer checklist:

  • prepare a procedure for workers to request a more predictable contract
  • review the company’s work schedule planning process and assess how more stable working hours/day can be achieved.

6. Extension of workplace sexual harassment laws

Under the Equality Act 2010 employers are legally responsible if an employee is sexually harassed at work by another employee, and the employer had not taken all steps they could to prevent it from happening.

Following the recent #MeToo movement, the government intend to strengthen this protection by:

  • introducing a new statutory code of practice on sexual harassment at work
  • clarifying the law on third party harassment in the workplace
  • extending the employment tribunal time limits for claims under the Equality Act 2010 (currently three months).

Employer checklist:

  • ensure a policy on equal opportunities is in place and is followed in practice
  • train managers and all other employees about their rights and responsibilities under the equal opportunities policy
  • ensure that grievance and/or bullying and harassment policies are in place for dealing with employee complaints effectively
  • review equal opportunities policies and procedures when necessary to ensure fairness and take account of changes in the law.

7. Ethnicity pay gap reporting

Further to the gender pay gap legislation, the government also proposed that larger employers (with 250 or more employees) publish their pay gap to help tackle the differences in wages between different ethnic groups.

Employers will be encouraged to include a narrative with their calculations to explain the reasons for the results and give details about actions they are taking to tackle ethnicity pay disparities.

Employer checklist:

  • collect and analyze employee ethnicity data
  • encourage employees to provide ethnicity information by making the data easy to collect and explaining clearly the reasons why collecting this data is key to addressing ethnicity pay disparities
  • add the collection of ethnicity information into the recruitment process
  • ensure the data is processed in line with the General Data Protection Act (GDPR).

8. The right to disconnect

The right to disconnect is essentially the right for employees to refrain from work-related activities and electronic communication outside of their normal working hours without consequences. Several countries primarily in Europe already have laws in place to this effect and with home or hybrid working arrangements being likely here to stay, it is expected that the right to disconnect will be included in the UK employment bill in May.

The new law is expected to include the following measures:

  • employers should not require workers to be available outside their working time and co-workers should refrain from contacting colleagues for work purposes
  • employers should ensure that workers who invoke their right to disconnect are protected from victimisation and other repercussions and that there are mechanisms in place to deal with complaints or breaches of the right to disconnect
  • remote professional learning and training activities must be counted as work activity and must not take place during overtime or days off without adequate compensation.

Employer checklist:

  • ensure managers and employees are aware of their rights and responsibilities under the right to disconnect
  • draft and incorporate a right to disconnect policy and ensure it is implemented in practice
  • review and ensure existing working from home policies are aligned with the right to disconnect.

9. Settlement agreements

A number of cases have come to light where employers have used confidentiality clauses to prevent victims of workplace harassment or discrimination from speaking out. To prevent employers from misusing confidentiality clauses in these situations, the government has set out its aim to require employers to state more clearly the consequences and limitations of such clauses in employment contracts and settlement agreements.

The key proposals are to:

  • ensure that confidentiality clauses cannot prevent individuals from making a disclosure to the police, health and care professionals or legal professionals
  • produce guidance for legal professionals responsible for drafting settlement agreements
  • enhance the independent legal advice received by individuals signing confidentiality clauses
  • introduce new enforcement measures for confidentiality clauses that do not comply with legal requirements in written statements of employment particulars and settlement agreements.

Employer checklist:

  • review confidentiality clauses to ensure they do not prevent employees from making disclosures to professionals as listed in bullet point one above
  • provide employees who are asked to agree to confidentiality clauses with clear advice on the consequences of doing so.

10. Modern slavery statements – extension of the duty to public sector

The duty on employers to publish an annual modern slavery statement is being extended to include public bodies (with a budget of at least £36 million per year) and areas which employers are encouraged to report on under the Modern Slavery Act 2015 are to become mandatory as opposed to being recommendations only.

The government have also introduced a requirement for all organisations covered under the legislation to publish their modern slavery statements to a new online registry which is designed to enhance transparency by making it easier for consumers, investors and civil society to hold organisations to account for the steps they have taken to tackle modern slavery. Modern Slavery Statement Service

A shared reporting period from April to March is also to be introduced for all organisations, with a single reporting deadline of 30 September.

Employer checklist:

  • employers who are already affected by the legislation should review their modern slavery statement to ensure that the six reporting areas are already covered where relevant
  • public bodies that are covered by the extension of the duty to the public sector should begin planning to draft their first modern slavery statement and establish a process for collating the anti-slavery activities of external suppliers and internal departments. They will also need to start collating the steps they are taking in relation to the six reporting areas. See the following link for statutory guidance on writing slavery and human trafficking statement: Statutory Guidance

11. Extending the time required to break a period of continuous service from one week to four weeks for calculating employment rights

The time required to break a period of continuous employment is currently one week. The government intend to extend this gap in service up to four weeks without it affecting employee’s statutory employment rights.

Employer checklist:

  • keep the new four-week gap in mind when issuing contracts to employees who work for the organisation intermittently over a period of time to ensure they have access to their entitlement to statutory employment rights.

12. Requiring high-earning public-sector employees to repay exit payments where they return to work in the public sector within one year of leaving

The government is proposing to take action to support fairness and value for money where exit payments are paid to employees or officeholders who return to similar employment in the public sector within a year. It proposes to do this by establishing national requirements on the recovery of exit payments in the public sector and a framework for individual employers to take forward the changes needed to meet these requirements. These measures would underpin but not replace existing terms that go further to recover exit packages on reemployment.

13. Extending exclusivity clause ban to low-income workers

The government propose 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. This will allow low-income workers who are not able to secure the number of hours they would like from their current employer to seek additional work elsewhere.

Employer checklist:

  • collect and analyze employee weekly income data and ensure the relevant employment contracts do not include an exclusivity clause
  • ensure the data is processed in line with the General Data Protection Act (GDPR).

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