Consultation season is upon us!
24 July 2019
Theresa May’s final days as prime minister have seen the launch of no fewer than seven consultation exercises on employment matters. While these will provide much food for thought over the summer holidays, it remains to be seen what approach the incoming administration led by Boris Johnson might take to the various issues under consideration.
The consultations focus on high-level employment issues and associated social policy. Some are in direct response to Matthew Taylor’s independent review of modern working practices, which set out 53 recommendations for improving legal regulation in this area, and the Good Work Plan published by Government last December in response.
Good Work Plan - proposals to support families
Theresa May personally put her name to the press release launching a consultation on parental leave entitlements. The consultation document looks at proposals to support employed parents, and whether more could be done to better balance the gender division of parental leave and pay between parents. It refers to the recently published gender equality “roadmap”.
- Parental leave and pay. The consultation states a commitment to giving parents equality of opportunities at home and work, and incentivising businesses to support their choices over childcare responsibilities. The options include: enhancing paternity pay and/or length of paternity leave; reform of the shared parental leave and pay schemes; associated implication for maternity leave; and more radical proposals such as a single set of “family leave” entitlements.
- Neonatal leave and pay. The consultation says that current leave and pay entitlements are not adequately supporting parents in circumstances where their babies need neonatal care for a number of weeks or months. The proposal is for “neonatal leave and pay”, in addition to existing leave, with the consultation seeking views on this new right and how it should work in practice.
- Transparency of flexible working and family-related leave. With a stated aim of helping to close the gender pay gap, the consultation asks about proposals to require employers with more than 250 employees to publish their family-related leave and pay policies, and to require all employers to state whether a job can be done flexibly when advertising.
- Deadlines for responses - 29 November 2019 (parental leave and pay); 11 October 2019 (neonatal leave and pay; transparency of flexible working and family-related leave).
Good Work Plan - addressing one-sided flexibility
This consultation considers issues surrounding “one-sided flexibility” – the notion of an excessive amount of risk being transferred to workers with no corresponding benefit to them. Theresa May’s Government commissioned the Low Pay Commission (“LPC”) to advise on the prevalence of this phenomenon. It highlighted that some employers are misusing flexible working arrangements to create unpredictability of hours and insecurity of income, and also reluctance among some workers to assert basic employment rights. The LPC made various recommendations, some of which are included in the new consultation.
- Reasonable notice of work schedules. The consultation asks for views on a proposal to create a new right to reasonable notice of work schedules - including when this should apply, what notice should be given, and what the penalty for non-compliance should be.
- Compensation for shift cancellation. The consultation seeks views on a proposal for a right to compensation for shift cancellation or curtailment without reasonable notice, including the relevant cut-off point and amount of compensation.
- Deadline – 11 October 2019.
Good Work Plan - Single Enforcement Body for employment rights
The proposal in this consultation is to establish a new Single Enforcement Body for both workers and employers, to deal with issues such as the minimum wage, modern slavery, employment agencies, use of umbrella companies and holiday pay for vulnerable workers.
- Aims of the proposal. Having identified various problems with current fragmented system of enforcement, the consultation aims to deliver: a strong, recognisable single brand; better support for businesses; coordinated enforcement action; pooled intelligence and more flexible resourcing; and closer working with other enforcement partners.
- Issues for consultation. Views are sought on the benefits and risks of the proposal, coverage of other areas such as statutory sick pay and discrimination, and the approach to enforcement.
- Deadline – 6 October 2019.
Sexual harassment in the workplace
This consultation looks at strengthening existing legal protections under the Equality Act 2010 (“EqA”) in order to combat sexual harassment in all its forms. Despite existing laws prohibiting harassment, the #MeToo movement has made it abundantly clear that this is still a persisting problem. The consultation follows on from the initial government response to recommendations made by the Women and Equalities Committee. Although triggered by the problem of sexual harassment, these proposals apply to all types of unlawful harassment.
- Duty to prevent harassment. The consultation document proposes a new, mandatory duty on employers to take all reasonable steps to prevent harassment of employees. Views are sought on the proposal and options for enforcement of the new duty.
- Third-party harassment. The consultation proposes a duty on employers to protect employees from harassment by third parties, such as clients and customers, reviving a repealed provision of the EqA that imposed liability if the employer was aware of two previous incidents. Views are sought on whether liability should be triggered without the need for a previous incident, and whether the employer should have a defence if it had taken all reasonable steps to prevent the harassment from happening.
- Volunteers and interns. The consultation asks whether protection against harassment should be extended to volunteers and interns.
- Extending time limits. The consultation seeks evidence on whether the existing three-month time limit for bringing an Employment Tribunal claim under the EqA is long enough, whether there are grounds for a different time limit for certain types of claim, and what that time limit should be.
- Non-legislative interventions. The consultation seeks views on non-legislative interventions to prevent sexual harassment before it occurs or, where it has occurred, to stop it happening again.
- Deadline – 2 October 2019.
Health is everyone’s business
This consultation sets out proposals to reduce ill-health related job loss, against the background of an ageing population. It highlights the gap between employment of disabled people and those who are non-disabled, with disabled people being twice as likely to fall out of work.
- Supporting people with health conditions to remain in work. The consultation asks whether employers should have a role to support employees with health conditions who are not covered by disability legislation.
- Right to request work modifications. Views are sought on the proposal to introduce a new right to request work modifications on health grounds, applicable to employees who do not meet the legal definition of disability.
- Reforms to statutory sick pay. The consultation seeks views on proposals to amend the SSP rules to allow for a phased return to work, widen eligibility for those on lower incomes, and strengthen compliance and enforcement.
- Improved access to high-quality, cost-effective occupational health. The consultation anticipates that encouraging employers to take early action to support employees will result in more employers wanting to purchase OH services. There is no commitment to providing financial support to smaller employers, but the consultation asks for views on this.
- Advice and support for employers. The consultation recognises that employers must have access to good quality advice to understand and comply with their legal obligations, and provide the appropriate support to their employees. It asks what further information, advice and guidance is required.
- Deadline – 7 October 2019.
Transparency in supply chains
Under the Modern Slavery Act 2015, commercial organisations with an annual turnover above £36 million are required to publish an annual modern slavery statement, setting out the steps they are taking to prevent modern slavery in their operations and supply chains. This consultation highlights the importance of transparency in relation to this obligation.
- Independent review of the Modern Slavery Act. The outcome of this review was published in May 2019, and made various transparency recommendations. These included clarifying the scope of organisations required to report, increasing compliance, and extending the obligations to public-sector organisations.
- Proposals on supply chains. The new consultation picks up on these recommendations and makes various proposals on which views are sought. These include: making reporting on six suggested topics compulsory; a requirement to publish modern slavery statements on a government registry; a single reporting deadline; new enforcement penalties; and extending the requirement to publish a modern slavery statement to larger public-sector organisations.
- Deadline – 17 September 2019.
Draft IR35 legislation - off-payroll working
Following the HM Revenue & Customs’ confirmation that the new IR35 rules will be extended to the private sector from April 2020, it has published a policy paper on introducing these changes.
The new rules aim to ensure fairness between individuals working in a similar way. Medium and large engagers will become responsible for assessing an individual’s employment status and deducting the right tax and National Insurance contributions. We have already commented on draft legislation, which has been published for consultation (with a deadline for responses of 5 September 2019).
We will be busy over the summer drafting our responses to these consultation exercises. Please do get in touch if you have views on any of these topics that you would like us to factor into our submissions.