Last reviewed 28 August 2019

Stuart Chamberlain, author and Senior Employment Law Consultant at Croner-i, examines the key points of consultations in force and future consultations, as a result of Theresa May’s legacy plans in accordance to the Government’s Good Work Plan, drawing out their implications for employers.

Current consultations

One-sided flexibility

The Government wishes to act on the proposals made by the Low Pay Commission (December 2018) to address the issue of “one-sided flexibility”. This issue exists within some parts of the labour market, where employers misuse flexible working arrangements, creating an unpredictability in working hours, income insecurity and a reluctance among workers to assert basic employment rights.

The Good Work Plan states that legislation will be introduced to allow all employees and workers with varying hours and shift patterns (including agency and zero hours workers) to formally request a more fixed working pattern after 26 weeks of work for the same employer. There would also be a right to compensation for shifts cancelled without reasonable notice.

It is anticipated that the new legislation will mirror the flexible working regulations, which will be extended to workers.

The consultation ends on 11 October 2019.

Family leave

The Government has launched a consultation seeking views on proposals to support parents to balance work and family life. There are three areas of consultation.

  1. Reform of family-related leave and pay.

  2. New right to neonatal leave.

  3. Transparency: Flexible working and family-related leave and pay policies.

Reform of family-related leave and pay

The consultation does not set out any suggested proposals but seeks views on the benefits, costs and trade-offs to reforming the current system to meet the Government’s aims of giving families more flexibility, increasing paternal involvement in childcare and supporting mothers to return and remain in work.

This consultation closes on 29 November 2019.

New right to neonatal leave

A proposed new right for parents of babies requiring more than two continuous weeks in neonatal care following birth to receive one week of neonatal leave and pay for every week that their baby is in neonatal care, up to a maximum number of weeks.

The effect of this proposal would be to extend statutory maternity, paternity or adoption leave by the duration of neonatal leave. It is proposed that the right to neonatal leave will be a “Day 1 right” — there would be a qualifying period of employment before the right is available, although the entitlement to neonatal pay will be the same as that for statutory paternity pay and shared parental pay.

This consultation closes on 11 October 2019.

Transparency: Flexible working and family-related leave and pay policies

This consultation is concerned with policies that could make employees more aware of their entitlements; for example:

  • to consider creating a duty for all employers to assess whether a job can be done flexibly and make that clear when advertising

  • requiring employers with more than 250 employees to publish their parental (family-related) leave and pay policies in line with the approach to gender pay gap reporting.

This consultation also closes on 11 October 2019.

Ill-health related job losses

Statistics from the Department for Work and Pensions and Department of Health and Social Care show that about 100,000 people every year fall out of work completely after a sickness absence and that nearly half (44%) of those who are off work because of illness for a year do not return to the workplace.

The Government has launched a public consultation on a range of measures to reduce ill health-related job losses. It states in this consultation that, “there is a case for employers to do more to support their employees who are managing health conditions or who are experiencing a period of sickness absence”.

Proposals include the following.

  • Introducing a new right to request workplace modifications for all employees suffering from health conditions — not just those who are deemed to be disabled, where the duty to make reasonable adjustments applies. This would significantly widen employers’ legal obligations. The consultation also suggests a Code of Practice to support employers and employees in this area of employment law.

  • Introducing a sick pay rebate for SMEs to help them support individuals with disabilities or long-term conditions return to work.

  • Pro-rating Statutory Sick Pay (SSP) to ensure that employees can agree a phased return to work without being financially worse off.

  • Extending SSP to low earners (presently it is only paid to those who earn more than £118 per week, which excludes around two million workers). To avoid low earners receiving SSP at a higher rate than their actual wages, it will be set at 80% of their average weekly earnings. Fines would be imposed on employers who refuse to pay SSP.

  • Strengthening statutory guidance to support employers to take “early, sustained and proportionate steps” to support a sick employee to return to work, before that employee can be fairly dismissed on the grounds of ill health.

  • Improving access to occupational health providers — by co-funding or introducing vouchers for smaller employers.

  • Enforcing SSP through a new, single, labour market enforcement body.

The consultation closes on 7 October 2019.

Sexual harassment in the workplace

The Government Equalities Office (GEO) has launched a consultation on sexual harassment in the workplace and are looking at whether the current laws on this issue provide the protections they are supposed to. The consultation will consider whether there are any gaps and look at what more can be done at a practical level to ensure employees are properly protected at work, so that everyone feels safe and can thrive.

The consultation is split into two parts, both look at the same issues with a different level of detail:

  • a set of online questions that are quick and easy for anyone to respond to

  • a more technical document that invites views on the details of the law.

Employers and individuals who have experienced sexual harassment in the workplace are encouraged to participate in the consultation.

The deadline for responding is 2 October 2019.

Single enforcement body for employment rights

This consultation seeks views on whether establishing a new single enforcement body for employment rights could:

  • improve enforcement for vulnerable workers, particularly in the areas of umbrella companies and holiday pay, which are not currently enforced by the state, labour exploitation and modern slavery and take on the responsibilities for pay (including the minimum wage), SSP, discrimination and harassment presently undertaken by other bodies

  • create a level playing field for the majority of businesses who are complying with the law.

Matthew Taylor, the “architect of the Good Work Plan”, has been appointed the new Director of Labour Market Enforcement.

The consultation closes on 6 October 2019.

Future consultations

The Government still has to take action on other important parts of the Good Work Plan. They include:

  • alignment of employment status frameworks for the purposes of employment rights and tax

  • legislation to improve the clarity of employment status tests

  • extension of the time (up to four weeks) required to break a period of continuous service to make it easier for employees to access their rights

Conclusions

If all this proposed legislation does come into force, it will certainly place new administrative burdens on employers and present new challenges.

As mentioned earlier, many of the proposals were published in the last months of the May administration, so it remains to be seen whether the successor, Boris Johnson, wishes to push through the necessary legislation and whether Parliament, with its current fixation on Brexit and the possibility of a “no deal”, has the time or inclination to consider the proposals.