Employment law in limbo: Key proposals to resurrect in 2021

Many proposed employment law changes that the government has put forward in the last few years have stalled, mainly as a result of the focus on Brexit and the coronavirus pandemic. Which proposals could be resurrected in 2021?

1. Sexual harassment

Following the #MeToo movement, the government looked at what more could be done 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.
• Extend the employment tribunal time limits for claims under the Equality Act 2010.
• Introduce a statutory code of practice on sexual harassment at work.

What this would mean for employers

2. Settlement agreements

To tackle misuse of confidentiality clauses when workplace harassment or discrimination occurs, the government stated its aim 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.

What this would mean for employers

3. Family-friendly rights

The Government has mooted a wide variety of potential changes to family-friendly rights in recent years, including an overhaul of flexible working rules, the introduction of statutory carers’ leave and neonatal leave, and changes to statutory paternity leave to encourage fathers to take more leave.

Key proposals

• Make flexible working the default unless employers have “good reason” not to do so.
• 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.
• Introduce neonatal leave and pay to support new parents whose baby requires neonatal care following birth.
• Overhaul family-friendly leave and pay entitlements, with a focus on changes to statutory paternity leave and pay that would encourage fathers to take more leave.

What this would mean for employers

4. 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).

What this would mean for employers

5. Requests for more stable contract

The government 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.

What this would mean for employers

6. Ethnicity pay gap reporting

With gender pay gap reporting legislation having bedded in, the government put forward options for requiring large employers to publish information on their pay gap for people from different ethnicities. If reporting is consistent, employers would be better able to benchmark their progress towards a more diverse workforce.

Key proposals

• Require large employers to report ethnicity pay gap figures annually.
• Mirror gender pay gap reporting where possible – the requirement would likely apply to employers with 250 or more employees, with an annual deadline to report (30 March for public-sector employers; 4 April in the private- and voluntary-sectors).
• Encourage employers to provide additional information in their ethnicity pay gap report to put their figures in context.
• Ask (or possibly require) employers to publish a narrative or action plan setting out what steps they are taking to address ethnicity pay disparities.

What this would mean for employers

7. Modern slavery statements

The government is making major changes to the duty on large employers 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 modern slavery statement.

Key proposals

• Extend the duty to publish an annual modern slavery statement to cover public-sector organisations with a budget 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.
• Create a central online registry where employers must upload their modern slavery statement, similar to the GOV.UK website where employers publish their gender pay gap reporting figures.

What this would mean for employers

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