Workers’ rights have been central to the Brexit debate, particularly as Prime Minister Theresa May reached across the political divide for support for her Brexit deal. The UK government has made assurances on workers’ rights that give some indication of the direction of UK public policy post-Brexit.
The EU (Withdrawal) Act 2018 provides that all European Union law (including EU legislation relating to employment and workers’ rights) will be transposed into domestic UK legislation on the date that the UK leaves the EU. If the UK leaves the EU with the deal proposed by Theresa May, there would be no immediate change to the UK employment law regime. However, following an implementation (or transitional) period (which was initially anticipated to last until at least December 2020 but will almost certainly be pushed back given the current delay to the UK’s withdrawal), the UK would be free to diverge from EU legislation. It is this potential divergence and what it might mean for UK employment law that has caused much political debate. If the UK leaves the EU without an agreed deal, then the immediate legal position is unclear, and any potential divergence is likely to be sooner.
- ensuring that changes to working practices are taken into account when continuing to assess whether the IR35 regime applies; and
- budgeting for the additional employer’s national insurance (and administrative) costs related to engaging independent contractors who fall within the IR35 regime.
Tightening the Rules on Nondisclosure Agreements
In light of recent high-profile cases of alleged misuse of nondisclosure agreements (NDAs), particularly in a number of #MeToo cases, the government has announced new proposals to tighten the rules on the use of NDAs and confidentiality clauses in employment and settlement agreements.
NDAs serve as useful tools at all stages of the employment relationship. On entry into an employment contract, NDAs are invaluable for employers seeking to protect their confidential information and trade secrets. At the end of the employment relationship, a well-drafted NDA in a settlement agreement can allow both the employer and the employee to achieve a “clean” break.
However, NDAs — colloquially known as "gagging clauses" — have received increased scrutiny in recent months largely in connection with the #MeToo movement and as a result of a number of high-profile individuals accused of putting undue pressure on former employees to accept financial settlements in exchange for their silence, sometimes in relation to alleged criminal behaviour (including in cases of extreme sexual harassment). As a result, broadly drafted NDAs that purport to prevent former employees from notifying regulators or law enforcement agencies about misconduct or criminal behaviour, or that prevent complaints of sexual harassment from being appropriately dealt with, are currently under review.
Some commentators have suggested an outright ban on all NDAs relating to harassment and discrimination. Instead, the government’s consultation includes proposals that would introduce legislation to:
- prevent the use of workplace confidentiality agreements (typically found in employment contracts or settlement agreements) to thwart reports of assault or other criminal conduct to the police, or the disclosure of information in criminal proceedings or to appropriate regulators;
- require a clear, written description of rights before workers sign confidentiality clauses in employment contracts or settlement agreements; and
- extend the law so that workers must receive independent legal advice on the effect of and limits on any confidentiality clauses in settlement agreements.
The proposals aim to prevent some of the reported excesses in the use of NDAs to silence serious allegations of harassment in the workplace (or misunderstandings, in the case of vague or broadly drafted NDAs), particularly where there is a strong public interest in these issues being publicised and dealt with. In a number of high-profile cases, some employers have consistently used NDAs to silence workplace complaints of serious and persistent sexual harassment, including in some cases extreme conduct involving potentially criminal acts that the government feels should have been investigated further.
The consultation also draws attention to the Women and Equalities Select Committee’s recommendation that the government provide standard, approved wording for confidentiality clauses that clearly sets out what the clause does and does not prevent an employee from disclosing. While there is concern that such wording would quickly become out of date and require frequent revision, standard wording could provide clarity for all parties and might avoid arguments that confidentiality provisions are void for not meeting the new requirements clearly enough. Alternative proposals include a statutory exclusion from NDAs that plainly sets out the limitations on any confidentiality provision.
The consultation period closed on 29 April 2019, and draft legislation could be proposed later this year.
Recruiting and Retaining More Women in the Workplace
In early 2019, the Women and Work All Party Parliamentary Group (APPG) published a toolkit, “How to Recruit Women for the 21st Century” (the Toolkit), that challenges employers to overhaul their recruitment processes in order to employ more women. It also makes a series of policy recommendations for the government to assist women entering, progressing in and returning to the workplace.
The APPG is a cross-party organisation made up of a number of stakeholders, including members of Parliament, who have a particular interest in addressing gender imbalance in the workplace.
During the course of 2018, the APPG reviewed the recruitment process of private, public and voluntary sector organisations and produced its findings and recommendations in a Toolkit comprising practical suggestions for employers to assist them in improving their recruitment processes and attract more female talent.
The Toolkit focuses on a number of key issues, including:
- Attracting female talent from the outset.
- The initial stage of the recruitment process — the job-design and advert placement, integral to getting the right people through the door — is considered essential.
- For example, does the advertised job default to traditional working hours, or does it make clear that the job is eligible for job-sharing, part-time work, flexible hours or work-from-home arrangements?
- The APPG’s research suggests that a stigma remains with flexible working — it is usually seen as a “privilege” granted only after successful completion of a probation period or after a sufficient amount of time has passed.
- The Toolkit encourages employers to change their internal policies so that flexible and agile working is the default, unless there is a genuine business reason why it would not be appropriate.
- Supporting women who are returning to work following a career break.
- The APPG’s research shows that women who want to return to work after a career break face a number of barriers. For example, employers may be reluctant to interview or hire women with a gap in their curriculum vitae.
- Such women make up an essential and significant percentage of the highly skilled female workforce. The economic benefits associated with bringing back women with middle-management-level experience or above are estimated to be valued at approximately £151 billion.
- The Toolkit emphasises that access to retraining and reskilling is a priority for removing the perceived barriers. This can be achieved through implementing refreshment training, returner programmes, mentoring schemes, coaching and sponsorship.
- Developing a pipeline of female talent.
- This element is particularly pertinent for industries that have not traditionally attracted women. For example, the APPG report that only 2% of those working in manual trades are women.
- The Toolkit advocates backing or implementing outreach initiatives from an early age (as young as school age) to kick-start the pipeline.
- The APPG advocates that women who do work in industries with low female representation have a responsibility to talk openly about their professional trajectory so that they can be seen as visible and relatable role models.
Some of the recommendations in the Toolkit are specifically addressed to the government. Those include:
- Breaking down gender pay gap data — which larger employers with 250 or more employees must publish annually — to include other data categories such as age, ethnicity and disability, and requiring smaller companies to publish their data;
- Introducing a diversity fund to enable small and medium-sized enterprises to offer coaching and mentoring to help women progress in the workplace;
- Removing barriers for young women to enter apprenticeships, including the introduction of an apprenticeship bursary fund for low-income women and women in other underrepresented groups (such as ethnic minorities); and
- Strengthening the Equality Act 2010 to provide better protection for disabled people from discrimination if they have a protected characteristic in addition to their disability, with a focus on gender.
This memorandum is provided by Skadden, Arps, Slate, Meagher & Flom LLP and its affiliates for educational and informational purposes only and is not intended and should not be construed as legal advice. This memorandum is considered advertising under applicable state laws.