There has been a lot of debate in recent years about changing workplace laws, particularly in areas of family friendly rights, sexual harassment and protection of atypical workers such as zero hours workers. Very few legal changes have actually come from this debate and no doubt that has much to do with Covid-19.

However, that doesn’t mean that employers should do nothing. In 2021 we know that HR will be very busy dealing with issues arising out of the pandemic and we have written about these in the first article in our Horizon scanning for HR series: Top 7 issues and initiatives for HR in 2021.

In addition, there is much to learn from what we know will become law soon and which organisations can continue to embed in their working practices. Adopting some of the proposed measures voluntarily could help organisations improve attraction and retention rates, putting them ahead of their competition. This is particularly so when it comes to family friendly initiatives which could have a significant impact on diversity and inclusion.

Key dates for HR in 2021

31 January Review of the Coronavirus Job Retention Scheme
31 March Coronavirus Job Retention Scheme ends
6 April Changes to formula for post-employment notice pay (PENP)
6 April Increases to the national minimum wage and national living wage rates come into effect
6 April Gender pay gap reports deadline
6 April IR35 tax reforms come into force
6 April Implementation of updated Home Office fees for immigration
30 June Deadline for applications under the EU Settlement Scheme
1 July Change to Right to Work requirements for newly recruited EU nationals

Horizon Scanning

Below is a list of potential changes which may be on the horizon. Many of these developments were announced in the Queen’s speech in December 2019 as part of a future Employment Bill, but have been delayed due to the pandemic. Whether they will be advanced in the near future is not yet clear but as mentioned above, there is nothing to stop employers acting now to start embedding some of these initiatives into their own working practices, as may be appropriate to their organisation.

Family friendly

One week’s carers leave – look out for the government’s response to its consultation on introducing one week’s unpaid leave per year for employees with unpaid caring responsibilities. The consultation closed in June 2020.

12 weeks’ neonatal leave – the government’s March 2020 response to its consultation stated that it intends to introduce a new statutory right of up to 12 weeks’ paid leave for employees whose babies spend an extended period of time in neonatal care. It is possible that this new right will be introduced in 2023 based on costings in the Spring 2020 budget.

Transparency of flexible working and family related leave and pay policies – look out for the government’s response to its July 2019 consultation seeking views on whether large employers should publish their family related leave and/or flexible working policies on their websites. It also looked at whether employers should have a duty to consider if a job can be done flexibly and make that clear when advertising a role. Businesses will have to pay particular attention to the level of information needed in a job advert if the government does go ahead and require employers to specify in job adverts whether flexible working would be considered.

Parental leave and pay – The government sought views on reforming parental leave and pay in a public consultation which closed in November 2019. We are still awaiting the government’ response, although the government did announce in the Spring 2020 budget that it would consider how to provide support to self-employed parents so they can continue to run their businesses, as a part of its wider review of parental pay and leave.

Redundancy protection for mothers – At the moment, an employer must offer women on maternity leave a suitable alternative vacancy if one is available (even if they are not the best qualified person for the role). Whilst this does give added protection for those employees, it is well known that return from maternity leave is a particular point at which many employees are made redundant and there is no added protection once employees return to work. Therefore, the government announced in summer 2019 that it would extend that protection from the moment they notify their pregnancy until six months after they return. Similar protection is proposed for employees taking adoption leave and shared parental leave. The government indicated its intention to include these rights in a future Employment Bill. In the meantime, a private members bill seeking to prohibit employers from making employees redundant during the same period was introduced into Parliament this year but does not appear to have progressed beyond its first reading.

Contracts of employment

Reform of post termination non-compete clauses - the government is currently consulting on measures to reform post termination non-compete clauses in employment contracts. Proposals range from banning them altogether, to requiring employers to compensate employees for the duration of the clause, similar to the position in Germany, France and Italy.

Zero hours workers & Atypical working

Extension of the ban on exclusivity clauses in contracts – the government is currently consulting on a law which will extend the ban on exclusivity clauses in zero hours employment contracts to workers who earn less than £120 per week. Currently the ban, which only applies to workers earning over this amount, prevents employers from contractually restricting zero hours workers from working with other employers.

Measures to address one-sided flexibility - a consultation which closed in October 2019 sought views on introducing new rights for workers to be given reasonable notice of their working hours and to be compensated where their shifts are cancelled or curtailed without reasonable notice. No government response has yet been published.

Continuity of employment - the government’s 2018 Good Work Plan indicates the government’s intention to extend the length of the gap in employment necessary to break continuity of employment from one week to four weeks. No indication has been given as to when this might become law, if at all.

Flexible working – look out for a government consultation on making flexible working the default position unless an employer has a good reason not to allow it. This was promised in the Queen’s speech in December 2019. The massive increase in flexible working since the advent of Covid 19 may well make this a more realistic option for the government than would have been anticipated at the time it was proposed.

Right to request a more predictable contractthe Queen’s speech in December 2019 indicated that zero hours and agency workers will be given the right to request a more predictable contract after 26 weeks’ service, and to receive a written reply within one month. The detail and timescale for exercising this right is not yet known. Expect more detail in a future Employment Bill.

Sexual harassment and bullying

In July 2019, the government consulted on how best to tackle sexual harassment in the workplace.

The government’s response was expected in Spring 2020. The consultation sought views on:

  • A new duty on employers to protect workers from harassment in the workplace. This could allow the Equality and Human Rights Commission (EHRC) to take enforcement action regardless of whether the individual has brought a tribunal claim. The EHRC technical guidance published in January 2020 is likely to be the basis of the legal duty on employers and is expected to become statutory guidance in due course
  • Whether employers should be required to publicly report on their prevention and resolution policies, with board sign-off. This could be combined with a requirement to report internally on, and monitor rates of, harassment complaints, and also on the results of exit interviews.
  • New third-party harassment provisions
  • Further protection against discrimination for volunteers and interns
  • Whether the current time limits to bring discrimination claims should be increased from 3 to 6 months, and whether the tribunal's just and equitable discretion to extend time is sufficient in the circumstances.

There is no current indication of when a response might be expected but watch out for it once the Covid 19 crisis and Brexit negotiations are beginning to subside.

NDAs and basic references

There has been a lot of focus on confidentiality clauses in settlement agreements after the Harvey Weinstein case involving women being prevented from talking about harassment. The EHRC published non–statutory guidance in 2019 setting out what information can legitimately be protected by confidentiality agreements. Following a government consultation in 2019, the government promised to legislate to curb the use of NDAs in employment contracts and settlement agreements and to consult on whether to require employers to provide a basic reference for all employees. No law has yet been proposed on this and we await further details later in the year.

Whistleblowing

For EU member states, the deadline to bring the EU Whistleblowing Directive into national law is 17 December 2021. The UK will not be required to do this but the Directive will remain relevant for many organisations operating in the UK as it may come to be regarded as best practice. This will be particularly important for financial services firms and organisations operating across Europe which have a single global whistleblowing framework. Expect to hear more from us on this as the year progresses.