The midpoint of 2022 is a good time for HR professionals to take stock of the many employment law proposals in the pipeline and reflect on what they will mean for their organisation. Stephen Simpson rounds up the proposed major legal changes that will have a significant impact on employers.
1. Sexual harassment
The government has mooted taking action to ensure that employers take all the steps that they can to prevent workplace sexual harassment.
Key proposals
– Introduce a mandatory duty on employers to prevent harassment in the workplace.
– Strengthen and clarify the law on third-party harassment in the workplace.
– Introduce a statutory code of practice on sexual harassment at work.
Resources for HR
Flexible working reforms: Practical implications for employers
Neonatal leave and pay: How would it work?
Statutory carer’s leave: How will the new employment right work?
Enhanced redundancy protection: Overview for employers
Modern slavery statement changes: What will employers have to do differently?
2. Settlement agreements
To tackle misuse of confidentiality clauses when workplace harassment or discrimination occurs, the government has said that it plans to require employers to set out more clearly the consequences and limitations of confidentiality clauses in contracts of employment and settlement agreements.
Key proposals
– Ensure that a confidentiality clause cannot prevent an individual from making a disclosure to the police, regulated health and care professionals, or legal professionals.
– Improve independent legal advice available to an individual when signing a settlement agreement.
– Produce guidance on drafting requirements for confidentiality clauses.
– Introduce new enforcement measures for confidentiality clauses that do not comply with legal requirements.
3. Right to request flexible working
The government is proposing to remove the requirement for employees to have 26 weeks’ service to make a flexible working request and tweak how employers are expected to manage requests.
Key proposals
– Remove the requirement for employees to have 26 weeks’ continuous service to be entitled to request flexible working, making the right to request flexible working a “day one” right.
– Allow employees to make more than one statutory flexible working request every 12 months, with the number of requests employees can make up for debate.
– Reduce the three-month time limit for employers to deal with statutory flexible working requests, with the new timeframe still to be decided.
– Require employers to consider alternative working arrangements when rejecting a statutory flexible working request.
4. Statutory carer’s leave and neonatal leave
The government has promised to introduce two new types of family-friendly leave – statutory carer’s leave and neonatal leave.
Key proposals
– Introduce one week’s unpaid leave each year for employees who are carers, for the purpose of caring for a dependant with mental or physical health needs.
– Implement neonatal leave and pay to support new parents whose baby requires neonatal care following birth.
Model HR documents
Policy on requesting flexible working
Letter offering vacancy to employee made redundant during maternity leave
5. Redundancy protection
Employees on maternity leave already have the right to be offered any suitable alternative vacancy in a redundancy situation. However, the government intends to extend this protection to cover the period from the employer finding out about the pregnancy to six months after the employee’s maternity leave ends.
Key proposals
– Ensure that the redundancy protection period, which gives the right to be offered any suitable alternative vacancy in a redundancy situation, applies from the point that the employee informs the employer that she is pregnant (whether this is done orally or in writing).
– Extend the redundancy protection period to six months after a new mother has returned to work, with the protection period starting once maternity leave is finished.
– Mirror the extension of the redundancy protection period for those taking adoption leave and shared parental leave (but not paternity leave).
6. Requests for more stable contract
The government has suggested that it will legislate for the right for workers to “request a more predictable and stable contract” and be provided with “reasonable and recordable” work schedules.
Key proposals
– Provide workers with the right to request a more predictable and stable contractual working pattern after 26 weeks’ continuous service.
– Give workers the right to “reasonable and recordable” work schedules, to tackle the issue of workers being allocated shifts with limited notice, making it difficult for them to “plan their lives or find other work”.
– Define what counts as “reasonable notice” of work schedules, which might include a minimum amount of notice while also building in some flexibility (for instance for the emergency services).
– Provide workers with compensation for shifts cancelled without reasonable notice.
7. Data protection
The government is making wide-ranging changes to the UK data protection regime that will have a major impact on how personal data is managed in the employment context.
Key proposals
– Replace the requirement to designate a data protection officer with an obligation to appoint a senior individual to be responsible for data privacy management.
– Remove the requirement to undertake data protection impact assessments and allow greater flexibility for data protection risk assessments.
– Replace the current record-keeping requirements with greater flexibility to document the purposes of processing.
– Lower the threshold for being able to refuse, or charge for, a subject access request to “vexatious or excessive”, replacing the current “manifestly unfounded or excessive” threshold.
8. Modern slavery statements
There will be major changes to the duty on large organisations to publish an annual modern slavery statement. The changes will also bring large public-sector organisations within the scope of the duty to produce a statement.
Key proposals
– Extend the duty to publish an annual modern slavery statement to cover public-sector organisations with a budget threshold of at least £36 million per year. This includes local authorities, NHS bodies, police forces and central government departments.
– Mandate the areas on which employers must report under the Modern Slavery Act 2015, rather than the reporting areas being recommendations only.
– Introduce a shared reporting period of 1 April to 31 March for all organisations covered by the legislation, with a single annual reporting deadline of 30 September.
– Require employers to upload their modern slavery statement to the central online registry, which is similar to the GOV.UK website where employers publish their gender pay gap reporting figures.
Other proposals that could progress
– Introducing new rules to ensure that tips are passed to workers in full.
– Extending the time required to break a period of continuous service from one week to four weeks for calculating employment rights.
– Widening the ban on exclusivity clauses, currently banned in zero hours contracts, to include contracts where a worker’s guaranteed weekly income is less than the lower earnings limit for national insurance purposes.
– Removing the restriction on agencies providing temporary workers to employers to perform the duties normally undertaken by workers taking part in industrial action.
– Introducing a statutory code of practice on “fire and rehire”, with employers acting in breach of the code facing an uplift of up to 25% in compensation awarded at a tribunal.
– Replacing the Human Rights Act 1998 with a Bill of Rights. The Act contains important rights that affect workers, for example rights to: freedom of expression; a private and family life; freedom of association with others; and freedom of thought, conscience and religion.
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