Potential Changes Coming to Employment Law
Employment Law Update
Here Gill Wooldridge looks at proposed new employment legislation following the Taylor Review of Modern Working Practices. If we can help with the issues raised in this article or any other employment related matters, please feel free to contact Gill Wooldridge at Gill@bradleyhayneslaw.co.uk or on 01905 900919.
The Government’s proposed legislation following the Taylor Review of Modern Working Practices – pending/consultation paper issued/government response published
The proposed new legislation will:
- close a loophole by repealing the Swedish derogation – which currently allows agency workers to be employed on cheaper rates than permanent counterparts
- extend the right to a day one written statement of rights to workers, going further to include detail on rights such as eligibility for sick leave and pay and details of other types of paid leave, such as maternity and paternity leave
- quadruple maximum employment tribunal fines for employers who are demonstrated to have shown malice, spite or gross oversight from £5,000 to £20,000
- extend the holiday pay reference period from 12 to 52 weeks, ensuring those in seasonal or atypical roles get the paid time off they are entitled to
- lower the threshold required for a request to set up Information and Consultation arrangements from 10% to 2%
- the government is also committing to legislate to improve the clarity of the employment status tests to reflect the reality of the modern working relationships.
In the ‘Good work plan’, published in December 2018, the government made a commitment to abolish a legal loophole known as the ‘Swedish derogation’ in the rules governing the use of agency workers. This allowed agencies to opt out of equalising the pay of agency staff with the permanent workforce when they had been with the same employer for more than 12 weeks, provided they paid the agency workers between assignments. The opt-out will cease on 6 April 2020 when the Agency Workers (Amendment) Regulations 2019 come into force.
The government is also lengthening the reference period for determining an average week’s pay from 12 weeks to 52 weeks from 6 April 2020 – see the Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018. The reform is intended to improve the holiday pay for seasonal workers, who tend to lose out over the way it is currently calculated.
A third change will extend the entitlement to receive a statement of ‘written particulars’ (on basic employment terms and conditions) to include workers as well as employees and make it a day one right (see Part 3 of Employment Rights (Miscellaneous Amendments) Regulations 2019). Currently employers have up to two months to issue the statement to any employee working for them for more than a month.
2020: Parental Bereavement Leave and Pay – will come into force April 2020
The Parental Bereavement Leave and Pay Act 2018 has now been passed by royal assent. It is expected to come into force in 2020 and will give all employed parents the right to 2 weeks’ leave if they lose a child under the age of 18, or suffer a stillbirth from 24 weeks of pregnancy. Parents will also be able to claim pay for this period, subject to meeting eligibility criteria.
In October 2017, the government confirmed its backing for a private members’ bill, the Parental Bereavement (Leave and Pay) Bill. The Bill, which became the Parental Bereavement (Leave and Pay) Act on 13 September 2018, will entitle employees who lose a child under the age of 18, or suffer a stillbirth from the 24th week of pregnancy, to two weeks’ unpaid leave, as a right from day one of their employment.
The leave will be paid at the statutory rate (see our Statutory rates and compensation limits) if the employee has 26 weeks’ service. The government is aiming for the new law to be in force in 2020.
Employed parents are already entitled to take a reasonable amount of unpaid time off to deal with an emergency involving a dependant, including dealing with a dependant’s death, as a day one right.
Workplace rights after No-Deal Brexit
In most cases there will be no changes to workplace rights if there’s a no-deal Brexit. However, there will be some changes to rules on:
- employer insolvency for UK employees working in the EU
- membership of European Works Councils
Employer insolvency
UK and EU employees working in the UK
The rights of UK and EU employees working in the UK will not change after a no-deal Brexit. You will still be protected if your employer becomes insolvent.
UK employees working in an EU country for a UK employer
If your employer becomes insolvent you may still be protected by the national guarantee fund established in the EU country in which you work. However, your rights may differ in each country depending on how that country extends protections to non-EU employers and employees.
European Works Councils
Currently workers can ask their employer to set up a European Works Council (EWC) to provide information and consult with employees on issues affecting employees in 2 or more European Economic Area countries.
UK employees
If you are employed in the UK you will no longer be able to ask your employer to set up an EWC after Brexit. However, if a request to set up an EWC is submitted before we leave the EU it will be allowed to complete.
If you’re currently a representative, you may be able to be involved with your company’s EWC after Brexit if your company agrees. We will make sure the enforcement framework, rights and protections for employees in UK EWCs are still available as far as possible.
UK businesses and trade unions
UK businesses with an existing EWC, and trade unions that are involved in EWC agreements, may need to review those agreements if there’s a no-deal Brexit. We would encourage businesses to continue to allow UK workers to be represented on EWCs on a voluntary basis.
If we can help with the issues raised in this article or any other employment related matters, please feel free to contact Gill Wooldridge at Gill@bradleyhayneslaw.co.uk or on 01905 900919.