The government has an ever-lengthening to-do list when it comes to employment law reform, with several initiatives announced over the last few years still awaiting the moment “when Parliamentary time allows”. It is beginning to feel like that time may never come. The long-awaited Employment Bill was once again missed out of the Queen’s Speech delivered on 10 May 2022; the only employment law measure included was the Harbours (Seafarers’ Remuneration) Bill aimed at ensuring seafarers receive the national minimum wage while in UK waters following on from the P&O situation.
Otherwise, there were a handful of promised bills that may impact on employment law in ways yet to become clear, including the Brexit Freedoms Bill which will “enable law inherited from the European Union to be more easily amended”, the Bill of Rights which is to replace the Human Rights Act, and the Data Reform Bill which aims to reduce burdens on business and focus on privacy outcomes rather than box-ticking. Last week the Government published its response to the earlier consultation on data protection reform which, even in the absence of a draft Parliamentary bill, gives a good indication of what the new UK data protection regime will look like. Of particular interest from an employment law perspective is the proposal concerning subject access requests: the Government seems to have decided not to re-introduce a nominal processing fee, but is proposing allowing organisations to refuse to respond to “vexatious or excessive” data subject access requests, replacing the existing “manifestly unfounded or excessive” wording (though the difference between these two constructs is as yet unclear). The response also proposes removing or changing a number of the “accountability and governance” obligations currently set out in the UK GDPR, including the requirement to appoint a data protection officer (this will be replaced with the requirement to designate a suitable individual to oversee the organisation’s DP compliance), maintain a record of processing activities and to undertake data protection impact assessments. These prescriptive obligations will be replaced by a requirement for organisations to implement a more flexible privacy management programme tailored to the level of the organisation’s processing activities and the volume and sensitivity of personal data handled. See the HSF data blog post here for further details.
Other recent announcements include:
- the Government confirmed on 9 May that legislation would be laid later this year to extend the ban on exclusivity clauses in employment contracts (currently applicable to those on zero hours contracts) to apply also to individuals whose guaranteed earnings do not exceed the Lower Earnings Limit (currently £123 per week). A clause that prevents such an individual from working for someone else or doing so without the employer’s consent will be unenforceable, and dismissal/detriment for breaching an unenforceable exclusivity clause will be automatically unfair/ unlawful.
- regulations have been made and come into force on 1 July 2022 allowing registered nurses, occupational therapists, pharmacists, and physiotherapists (in addition to doctors) to issue fit notes following an assessment of a patient’s fitness for work. The aim is to ease pressure on doctors and facilitate patients having improved conversations about work and health with the most relevant healthcare professional.
- on 12 May the Prime Minister asked Matt Warman MP to lead a Future of Work Review over spring and summer 2022 and then to submit a report and recommendations on how the government can best support a thriving future UK labour market. Possible topics mentioned in the Terms of Reference include the role of automation and protections in the gig economy.
- on 27 May the BEIS Committee launched a Call for Evidence by 8 July 2022 on the UK labour market in light of Brexit and Covid-19. The Committee is focussing on whether the UK has enough workers with the right skills and whether current employment law is fit for purpose. Questions cover recruitment and skills shortages, AI and technology in the workplace, workers’ rights and protections (with specific mention of the gig economy, opportunities post-Brexit, home-working and views on what the promised statutory code on fire and rehire should include), the definitions of employment status and flexible working proposals, and the ageing population.
- the Government has also recently confirmed that it has no current plans to make the menopause a protected characteristic, nor to bring the dual discrimination provisions in the Equality Act 2010 into force. It will instead review whether existing guidance could be improved.
It seems there is considerably more bandwidth for instigating reviews and announcing policies than for actually implementing change. Keeping track of proposals has become no mean feat for employers. The backlog of legislative initiatives to which the Government has said that it is committed now includes:
- a single enforcement body for key employment rights
- a right to request a more predictable and stable employment contract, and reasonable notice of shifts and compensation for shift cancellation
- improvements to the right to request flexible working, making this a day one right
- extension of redundancy protections to cover the period six months after returning from maternity/adoption leave
- the introduction of neonatal leave and pay, and a new entitlement to one week’s unpaid leave for employees who are carers
- legislation proscribing the use of non-disclosure agreements
- the introduction of a proactive duty on employers to take all reasonable steps to prevent sexual harassment in the workplace (supported by a new statutory code)
- a statutory code on ‘fire and rehire’ practices, which tribunals will be required to take into account where relevant and which could lead to compensation awards being uplifted by up to 25% for breach
- a right for hospitality staff to keep tips
- an extension of the length of the gap in service required to break continuity from 1 week to 1 month.
One proposal that may make speedier progress is the recently announced proposal to repeal the prohibition on businesses using temporary workers to cover for employees on strike. A timeline of mid-July 2022 has been suggested.
Guidance is also expected on:
- voluntary ethnicity pay gap reporting – by summer 2022
- lawful positive action – by December 2022
- updated ICO guidance on employment practices (consultation ended October 2021).
We are also waiting for consultation responses or reviews in a number of other areas:
- workforce disability reporting – the response was expected on 17 June 2022
- health and disability proposals – a White Paper was promised for mid 2022
- the role of employers in improving mental health and wellbeing (closes 5 July 2022)
- the family rights regime, including paternity leave and pay and shared parental leave and pay
- the impact of the Gender Pay Gap Reporting Regulations (including consideration of a proposal to require large employers to publish family-related leave and pay policies)
- time limits for pregnancy and maternity discrimination claims
- follow-up to the pilot scheme to tackle pay inequality by including salary details in job adverts and not asking candidates about salary history
- possible reforms to laws governing non-compete clauses
- whistleblowing law – a review to ensure it remains fit for purpose
- a White Paper is expected on AI and the EHRC is to draft guidance on algorithmic decision-making
- the use of umbrella companies (the call for evidence closed in February 2022)
- response to the 2017 report on union e-balloting
- changes to the time periods for convictions to become ‘spent’
- responding to the Law Commission’s recommendations for reforming employment tribunal jurisdiction.
Finally, employers should note that, in light of inflation, the Living Wage Foundation intends to publish its new rates for the “real living wage” in late September rather than November this year.