With a General Election set for 12 December 2019, Ben McCarthy, employment law writer at Croner-i, outlines previous confirmed developments to the law going forward, alongside the implications for future changes from a Conservative or Labour victory.
In what has probably been the most turbulent political period in decades, Prime Minister Boris Johnson has finally had his bid for a Christmas General Election accepted. While Brexit is likely to dominate many of the campaigns to be undertaken, organisations must also keep in mind that worker rights remain a key issue for the Government regardless of which party has a majority. We have seen many changes over 2019, not least of which being the implementation of provisions outlined within the Good Work Plan, and are expecting further developments over the next few years. Below is previous commentary from the two major parties, the Conservatives and Labour, which can give some indication of what their respective victories could mean for employment law as a whole.
Queen’s speech pledges
On 14 October 2019, the Queen outlined pledges for legal developments that the current Conservative Government intended to introduce going forward. If the Conservatives win the election, they will continue to honour these pledges and future legal developments will work to build upon these. If Labour win, these developments may be subject to further amends or changes, or removed completely. These included the following:
the introduction of a new Bill to ensure that tips are distributed fairly to “those who work hard to earn them”; employers in relevant sectors, such as hospitality, will have to follow a new statutory Code of Practice on tip distribution
enhancing the powers of the Pensions Regulator so it can respond earlier if employers are not taking their pension enrolment responsibilities seriously
further reforms to continue to deliver on the commitments of the Good Work Plan, including provisions that ensure employees who want to work flexibly are not unfairly prevented from doing so, stricter enforcement to prevent poor treatment of workers and better support for working families.
In addition to this, the speech also confirmed the expected changes to the National Living Wage, currently the highest minimum wage band. Rates will increase to £10.50 an hour within the next five years, while age bandings will also be lowered. By 2021, workers aged 23 and over will be eligible to receive the Living Wage and by 2024, this will also be extended to those aged 21 and over.
Confirmed upcoming developments
Following a consultation held earlier in the year, the Conservative Government are to legislate to provide enhanced redundancy protections for pregnant women and new parents. Under these developments, current legal protections against redundancy are to be extended by six months following the mother’s return to work, while similar protections will be afforded to those returning from adoption and shared parental leave. Additionally, the Government is also to legislate to provide further oversight to the use of non-disclosure agreements (NDAs) in employment. In particular:
they aim to prohibit NDAs from preventing disclosures of illegal acts to the police
ensure that NDAs clearly lay out their limitations
place an obligation on individuals to receive independent legal advice before signing an NDA
put into place additional enforcement measures.
Currently, it is unclear when legislation will be presented to adopt these provisions into law. As outlined above, if Labour win the election, they could amend or even remove these expected changes going forward.
Additional consultations have also taken place this year, which are also expected to result in further legal developments. They are:
increasing transparency and compliance in the production of modern slavery reports
exploring if the current laws protecting individuals from sexual harassment in the workplace are sufficient
increasing leave and pay entitlements for parents of babies that require neonatal care after birth
evaluating whether employers should have a duty to consider if a job can be done flexibly when advertising for the role and if large employers should have to publish their family-related leave and flexible working policies
exploring ways to reduce ill health-related job loss by supporting and encouraging early action from employers
tackling “one sided” flexibility by assessing whether employers should provide a reasonable notice of working hours and if workers should have compensation for cancelled shifts.
Labour Party pledges
While it is not yet confirmed what changes Labour would make to employment law were the party to receive a majority, previous commentary from Labour leader Jeremy Corbyn provides a helpful look at the areas they would wish to explore. In September 2019, Corbyn outlined the following:
introducing a “real living wage” of at least £10 an hour to all workers aged 16 or over, meaning rates would no longer be categorised by age
repealing the Trade Union Act 2016, which currently provides additional steps that unions need to take in order for industrial action to be lawful
establishing a single status of “worker” for all individuals not genuinely self-employed, meaning that persons currently considered workers would likely benefit from the same rights as those labelled “employees”
implementing an immediate end to Swedish Derogation contracts, which are already to be banned from April 2020
providing all workers the right to seek flexible working and placing an obligation on employers to accommodate all requests
banning zero hours contracts
introducing a worker’s protection agency that would be able to enter workplaces on behalf of workers and provide tougher penalties to employers who operate in breach of employment law.
Again, it remains to be seen which of these developments would be taken further were Labour to get into power. While Corbyn has recently commented that he would aim to introduce the above “within 100 days of his taking office”, this would depend upon whether such developments would pass through Parliament.
Fundamentally, it seems that both parties remain committed to ongoing developments of employment law. A key area to be aware of is upcoming changes to the minimum wage, regardless of who wins; both rates and age bands are to change, something that will undoubtedly impact upon businesses. Whatever the outcome of the election, employers must make sure they are fully up to date with all legal developments that will affect them going forward.
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Last reviewed 6 November 2019